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PETITIONER: SMT. S. R. VENKATARAMAN

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT02/11/1978

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR   49            1979 SCR  (2) 202  1979 SCC  (2) 491  CITATOR INFO :  D          1980 SC 563  (26)  E&D        1991 SC 818  (25)

ACT:      Fundamental Rules-Rule  56(j) (i)-order  of  Compulsory retirement in  ’public interst’-Nothing on record to justify the order -Order if should be set aside.      Administrative Law-Administrative  action-An  abuse  of power-What is- order based on non-existing fact-Effect of.      Words and  Phrases- ’Malice  in fact’  and  ’Malice  in law’-Explained and distinguished.

HEADNOTE:      The appellant who was working as Joint Director, Family Planning in  the Directorate-General  of the All India Radio was  prematurely   retired  from   ser  vice.   She  made  a representation, but it was rejected.      In her writ petition under Art. 226 of the Constitution she alleged  that she  had a long and clean record of nearly three decades  but that  baseless allegations  had been made against her,  because of  malicious  vendetta  of  the  then Chairman of  the Central  Board of  Film Censors.  She  also alleged that the impugned order was arbitrary and capricious and that  the retiring authority had not applied its mind to the record of her case.      The writ petition was dismissed in limine.      On the appeal, the first respondent conceded that there was nothing on the record to justify the impugned order, and that the  Government was  not in  a position to support that unfair order.      Allowing the appeal, ^      HELD: (1)  There was nothing on the record to show that the Chairman  of the  Central Board of Film Censors was able to influence  tho Central  Government m  making the impugned order. It  was not  therefore the case of the appellant that there was  actual malicious  intention on  the part  of  the Government in  making the  alleged wrongful  order so  as to amount to malice in fact. [205E]      (2) Malice  in its legal sense means malice such as may be assumed  from the  doing of  a wrongful act intentionally but without  just cause  or excuse or for want of reasonable

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or probable cause. [205G] .      Shearer &  Anr. v.  Shields, [1914]  A.C. 508 at p. 813 referred to.      (3) It  was not  necessary to  examine the  question of malice in  law as  it was  trite law that if a discretionary power had been exercised for an unauthorised purpose, it was generally immaterial  whether its  repository was  acting in good faith or in bad faith. [205H-206A] 203 Pilling v.  Abergele Urban  District Council.  [1950] 1 K.B. 636: referred to.      (4) The  principle which is applicable in such cases is that laid  down by  Lord Esher  M.R. in  24 Q.B.D. 371 at p. 375, and followed in (1924) 1 Ch. 48 3. [206C-D]      (5) When a public body is prompted by a mistaken belief in the  existence of  a non-existing fact or circumstance it will be  an error  of fact.  That is so clearly unreasonable that what  is done under such a mistaken belief might almost be said to have been done in bad faith. [206E]      (6) When the respondent conceded that there was nothing on record  to justify the impugned order, that order must be set aside  for it amounts to an abuse of the power which was vested in  the authority  concerned as  it had  admitted the influence of extraneous matter. [206H-207A]      (7) It will be a gross abuse of legal power to punish a person or  destroy  her  service  career  in  a  manner  not warranted by  law by  putting a  rule which  makes a  useful provision  for   the  premature   retirement  of  Government servants only  in the "public interest", to a purpose wholly unwarranted by  it, and  to arrive  at quite a contradictory result. [206F]      (8) An  administrative order  which is based on reasons of fact  which do not exist must be held to be infected with abuse of power. [206G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2764 of 1977.      (From the  Judgment and  order dated  24-11- 76  of the Delhi High Court in C.R.P. No. 1264/76).      M. K. Ramamurthi and Faqir Chand for the appellant.      P. N. Lekhi and Girish Chandra for the respondent.      The Judgment of the Court was delivered by      SHINGHAL J.,  This appeal  by special leave is directed against an  order of the Delhi High Court dated November 24, 1976, dismissing the appellant’s writ petition in timing.      The appellant  was promoted  to the post of Director in the All India Radio after some thirty years of service under the Government  of India. She was working as Joint Director, Family Planning, in the Directorate General of the All India Radio, when  she was  served with  an order  dated March 26, 1976, retiring  her prematurely from service, with immediate effect, on  the ground that she had already attained the age of 50  years on April 11, 1972, and the President was of the opinion that  her retirement  was in  the "public interest". The appellant  made representation  on April 6, 1976, but it was rejected  on July  1, 1976.  She therefore  filed a writ petition in  the Delhi  High Court  under article 226 of the Constitution in which she, inter alia, made a mention of the hostile attitude of one V. D. Vyas who took over as Chairman of the 204 Central Board of Film Censors from her on February 11, 1972.

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She also  made a mention of the adverse remarks made by Vyas in her service record after she had ceased to work under him which, according  to her,  were "totally  unfounded, biased, malicious and  without any  justification". She  stated that "her integrity  had never  been considered doubtful 28 years before or  4 years  after the  period of 21 months she spent under  him."  It  was  also  contended  that  some  baseless allegations were  made against  her  because  of  "malicious vendetta"  carried  on  by  Vyas,  and  that  the  order  of premature retirement  was not  in public  interest  but  was "arbitrary and  capricious", and that the retiring authority had not "applied its mind to the record" of her case. It was particularly pointed  out that  as he  was confirmed  in the post of  Director on  April  28,  1973,  with  retrospective effect from  July  10,  1970,  any  adverse  remark  in  her confidential report  before that date could not legitimately form the basis of the order of her premature retirement. The appellant also  pointed out  that the order cast a stigma on her conduct,  character and  integrity and  amounted to  the imposition of  one of the major penal ties under the Central Civil Services  (Classification, Control  and  Appeal)Rules, 1965.      It  is  not  in  controversy,  and  has  in  fact  been specifically stated  in the  order of  premature  retirement dated March  26, 1976, that the appellant was retired in the "public interest"  under clause  (j) (i) of rule 56. of the, Fundamental Rules. That rule provides as follows,-           "(j) Notwithstanding  anything contained  in  this      rule the  appropriate authority  shall, if it is of the      opinion that  it is  in. the  public interest  to do so      have  the  absolute  right  to  retire  any  Government      servant by  giving him  notice of  not less  than three      months in  writing or  three months’ pay and allowances      in lieu of notice.           (i) If  he is  in Class  I or  Class II service or      post  and   had  entered   Government  service   before      attaining the  age of  thirty five  years, after he has      attained the age of fifty years." It is also not in dispute that the power under the aforesaid rule had to be exercised in accordance with the criteria and the procedure laid down in office memorandum No. F.33/13/61- Ests (A),  dated 23rd  June, 1969,  of the  Ministry of Home Affairs, Government of India. It is however the grievance of the appellant  that her premature retirement was not made in accordance  with  the  requirements  of  the  rule  and  the memorandum, but  was ordered  because  of  malice,  and  was arbitrary and capricious as the Government did not apply its mind to  her service  record and the facts and circumstances of her case. It has been speci 205 fically pleaded  that the  power under F.R. 56(j)(i) has not been exercised  "for the furtherance of public interest" and has been  based on  "collateral grounds".  The appellant has pointed out  in this  connection that her service record was examined in  March,  1976,  by  the  Departmental  Promotion Committee, with  which the  Union Public  Service Commission was associated,  and the  Committee considered  her fit  for promotion to the selection grade subject to clearance in the departmental proceedings which were pending against her, and that she  was retired  because of  bias and  animosity.  Our attention has  also been  invited to  the  favourable  entry which was  made in  her confidential report by the Secretary of the Ministry.      Mr. Lekhi,  learned counsel  for the  Union  of  India, produced the,  relevant record  of  the  appellant  for  our

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perusal. While  doing so  he frankly conceded that there was nothing on  the record  which could justify the order of the appellant’s premature  retirement. He  went to the extent of saying that  the Government was not in a position to support that unfair order.      We have  made a mention of the plea of malice which the appellant had  taken in her writ petition. Although she made an allegation  of malice  against V.  D. Vyas under whom she served for  a very  short period  and got an adverse report, there is nothing on the record to show that Vyas was able to influence the  Central Government  in making  the  order  of premature  retirement  dated  March  26,  1976.  It  is  not therefore the  case of  the appellant  that there was actual malicious intention  on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount  to malice  in fact.  Malice in  law IS,  however, quite different. Viscount Haldane described it as follows in Shearer and another v. Shield,(1)           ’A person  who inflicts  an  injury  upon  another      person in  contravention of  the law  is not allowed to      say that  he did  so with an innocent mind; he is taken      to know  the law,  and he  must act  within the law. He      may, therefore be guilty of malice in law, although, so      far the  state  of  his  mind  is  concerned,  he  acts      ignorantly, and in that sense innocently." Thus malice  in its  legal sense means malice such as may be assumed from  the doing  of a wrongful act intentionally but without just  cause or  excuse or  for want of reasonable or probable cause.      It is  however not necessary to examine the question of malice in  law in  this case,  for it is trite law that if a discretionary power  has been  exercised for an unauthorised purpose, it is generally immaterial whether      (1) [1914] A.C. 808 at p. 813. 206 its repository  was acting in good faith or in bad faith. As was stated  by Lord  Goddard C.J.,  in Pilling  v.  Abergele Urban District  Council(1), where  a  duty  to  determine  a question is  conferred on  an authority  which  state  their reasons for  the decision, "and the reasons which they state show that  they have  taken into  account matters which they ought not  to have  taken into  account, or  that they  have failed to take matters into account which they ought to have taken into  account, the  court to  which an appeal lies can and ought to adjudicate on the matter."      The principle  which is  applicable in  such cases  has thus been  stated by  Lord Esher  M.R. in  The Queen  on the Prosecution of  Richard West  brook v.  The  Vestry  of  St. Paneras(2). "           If people  who have  to exercise  a public duty by      exercising their  discretion take  into account matters      which the  Courts consider  not to  be proper  for  the      guidance of  their discretion,  then in  the eye of the      law they have not exercised their discretion." This  view   has  been   followed  in  Sedlar  v.  Sheffield Corporation.(3)      We are  in agreement with this view. It is equally true that there  will be  an error  of fact when a public body is prompted  by  a  mistaken  belief  in  the  existence  of  a nonexisting  fact   or  circumstance.  This  is  so  clearly unreasonable that  what is done under such a mistaken belief might almost  be said to have been done in bad faith; and in actual experience,  and as things go, these may well be said to run into one another.      The influence  of extraneous  matters will be undoubted

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where the  authority making  the order  has  admitted  their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted  by law by putting a rule which makes a useful provision  for   the  premature   retirement  of  government servants only  in the  ’’public  interest",  to  a  purpose‘ wholly  unwarranted   by  it,  and  to  arrive  at  quite  a contradictory result. An administrative order which is based on reasons  of fact  which do  not exist  raust therefore be held to be infected with an abuse of power.      So when  it has  been conceded  by Mr. Lekhi that there was nothing  on the  record which would justify the impugned order dated  March 26,  1976, of  the appellant’s  premature retirement under clause (j) (i) of      (1) [1950] 1 K.B. 636.      (2) 24 Q.B.D. 371 at p. 375.      (3) [1924] 1 Ch 483. 207 Rule 56  of the  Fundamental Rules,  and that the Government was not   in  a position  to support that unfair order, that order must  be set  aside, for it amounts to an abuse of the power which  was vested  in  the  authority  concerned.  The appeal is allowed with costs and it is ordered accordingly. N.V.K,                                       Appeal allowed. 208