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PETITIONER: S.   PRATAP SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 02/09/1963

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA DAS, SUDHI RANJAN SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1964 AIR   72            1964 SCR  (4) 733  CITATOR INFO :  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)

ACT: 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  retirement- When 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-Power- exercised mala fide and on  extraneous considerations-High  Court-Jurisdiction to  interfere  under Art. 226 of the Constitution.

HEADNOTE: 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 Jullunder  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

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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, [1961] 2  S.C.R. 371, distinguished. (iv)The appellant had no absolute right to opt for  retire- ment  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 ofthe  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.

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(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  correct- ness 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 inthe     Government.   The only question which could be consideredby   the  court   is whether the authority vested with the power has   paid attention to or taken into account circumstances, eventsor      ma tters wholly extraneous to the purpose for which the powerwas      veste d, or whether the proceedings have been initiated malafide 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, [1925]  A.C.  338, Short  v.  Poole  Corporation [1926] 1 Ch.  66,  Vatcher  v. Paull,  [1915]  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, [1904] A.C. 515, relied on. Per  Dayal and Mudholkar, JJ. (dissenting).  On  the  facts, the dominant motive which induced the Government to take ac- tion  against  the appellant was not  to  take  disciplinary proceedings  against him for misconduct 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  Consti-

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tution 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. 736

JUDGMENT: 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 present appeal. The facts of the case leading up to the appeal before us are set  out  by our learned Brother Dayal, J. in  his  judgment fully and in great detail and so we have thought it unneces- sary  to  cumber this 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 commend- 737 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  interpre- tation have all been dealt in the judgment of Dayal, J., and

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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 interpretation. We shall now proceed to deal with the second point (1)  [1954] 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  therefrom,  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  Govern- ment.   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  incharge  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

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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)[1956] 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) [1925] A.C. 338.               (2) [1926] 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

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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.  Treat- (1) [1915] A.C. 372.    (2)  [1924] 1 Ch. 483. (3)  [1951] 2 K.B. 284, 307. 741 ing 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 theofficer would be mala fide and a colourable exercise ofthat power, and would therefore be struck down by theCourts. 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,

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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) [1904] A.C. 515, 695. (2) [1885] 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.  Ifthe act is in excess of the power granted  or is an abuseor misuse of power, the matter is capable  of interferenceand  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  mo- tives 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

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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  ap-               pellant  did  but the refusal to  comply  with               fur-               744               ther  demands  of the same  type  angered  the               Chief Minister.               (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               pressed.               (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

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             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  Chief  Minister.               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  investigation. 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  ap- pellant  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

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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  Minister. 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 to 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 ofthe  allegations found in the newspaper. It is the case ofthe  appellant that these matters occasioned the hostility of the     Chief Minister and that the impugned orders passedin   June  1961 were passed not bona fide for the purposeof   conducting an inquiry into his conduct but to harassand   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 aside. 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  cha- racter  having been made against the Chief  Minister,  there could  only  be two ways in which they  could  be  repelled.

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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  evidance 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  al- legations  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 wece the subject of allegations in the petition.   Before  the written statement of the  State  was

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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 petitionThe applicant, therefore,               prays that thepetitioner  may be ordered  to               place      on recordthe 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  ap- pellant,  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  per- sons.   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  res- pondent  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 taperecord 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

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the  allegations made by the appellant are substantiated  or not. 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  per- formed 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 wound now.               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.  : Slightly....................               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

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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 me.               Mrs. Kairon : What ?               Ans. : This Surinder.               Mrs.  Kairon : Oh, you know what Sardar  Sahib               said.               He said he did not expect this thing from you.               753               Dr. P. Singh : From me ?  Mrs. Kairon : Yes.               Dr. P. Singh : Why.               Mrs. Kairon: That he should go away  from               you.               Dr. P. Singh:  No,  not  from  me.    From               Circuit House.               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

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             it         yesterday         and          then               left..........................................               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               yesterady  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  com- ing  out".   His version, however, as regards  the  recorded talks was :               "I  heard the tape-records prepared  from  the               taperecords  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 characterisation) 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

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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 operation. 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 Minister’s son. 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  inadmissable 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 therefrom that an operation  was performed  by  the appellant sometimes towards  the  end  of April 1960 very much turn on these factors.  In making  this

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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  recommen- dations 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

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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               mixture too.               Appellant : What are those tablets ?               Mrs.  Kairon  : in those  bottles  were  brown               brown tablets               Appellant:      I     shall     send      them               straightaway ........................               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  evi- dence 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 andthus  incur the anger or displeasure of the  Chief Minister. But notwithstanding the absence of that  type of evidenceit is clear that until 1959, at least, as is shown by thesepostal 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

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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 importance. 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  Mrs. 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  taperecorded 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 com- 761 plete  friendliness between the Chief Minister and  the  ap- pellant.  The appellant’s further allegation that Mrs.  Kai- ron  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  con-

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versation.   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 friendof 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 incovenience 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  cir- cumtances   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

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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 in- quiries as well as the bona fides of the action taken  under the  impugned order were questioned the report of the  Vigi- lance 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 him. 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,

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1957.  Similarly, there are others which had been made  ear- lier 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  ap- pellant  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  di- rect  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

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of the Constitution praying for quashing, by a writ of  cer- tiorari  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  trans- ferred  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  san- ctioned on December 18, 1960, and was notified in the Punjab Gazette dated January 27, 1961. 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  Ser- vices  (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 enquiry. 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

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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  grie- vances  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 him. 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. 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 necessiating 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

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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 sus- pension 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 despatched by the Director,  Health Services, Punjab, on June 3, 1961.  The envelope  containing

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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 redircted  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  delay. 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 [1963] Supp.  I S.C.R. 229. 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 appellant. 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,  dis- missed  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 p. 398:               "Before  something amounts to an order of  the               State  Government  two things  are  necessary.               The  order has to be expressed in the name  of

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             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 communicatcd 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 thercfore 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  Gov- ernment.   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."

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The contention for the appellant is that the rule with  res- pect 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  super- annuation 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 Govrnment 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 appellant. 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 rule. 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

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             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  applica- tion 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 those charges. 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  con- tention that the initial order of suspension pending enquiry must  be  made after obtaining the explanation of  the  Gov- ernment  servant  concerned.  That question did not  at  all arise for consideration in this case.

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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  superan- nuation without the consent of the appellant. 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: rules reads: "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  con- sent,  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

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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  pen- sion 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  55 years. 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 being.               "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

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             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)[1958] 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  res- triction  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 con-’  trol of -the Government so long as  the  departmental enquiry  against him on a charge of misconduct is  not  con- cluded and final orders are not passed. 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  pro- ,vision  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

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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)  [1961] 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 this contention. It has been contended that the allegations of facts made  by the  appellant in the petition being not  specifically  con- troverted  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  con- versation 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

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persons.   The  tape recorded conversation between  the  ap- pellant  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  B- series,  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

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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  un- reasonable  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 with. 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-in- 786 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  Chief- Minister.  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

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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  sub- sequent  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  dis missal  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  cir- cumstances 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 hardwork 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

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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 appellant. The  earliest definite incident which, according to the  ap- pellant,  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  fol- lowed.   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

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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.   Sub- sequent   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 pub- 791 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  hos- pital 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

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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

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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 appellant said:               "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 1960. 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  ap- pellant 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  depart- mental  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  Minis- ter.  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  appel- lant’,,, 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

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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 irresistable 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  there- fore  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 thetime  forming, or  is  in               the near future, likely to form,the               subject matter of departmental enquiry." The rule wasnot mandatory.  It was discretionary with the Government  to grant leave or not.  The police was  investi- gating into the complaint against the appellant in  December 1960  and it would have been too much for the Government  to form a definite opinion about the action to 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

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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 circumstances. We are therefore of opinion that it is not established  that the  impugned orders were made by the Governor not with  the ostensible  object of a proper departmental enquiry  against the  appellant  with  respect  to  the  complaints  received against  him,  complaints  found to have  substance  by  the police  on  investigation but were made  with  the  ulterior purpose of causing harassment and loss of reputation to  the appellant  as  he  had been instrumental  in  making  public allegations tending to bring the Chief Minister of the State into disrepute. We therefore dismiss the appeal. BY COURT: In view of the opinion of the majority, the appeal is allowed.  There will be no order as to costs here and  in the High Court. Appeal allowed. 797