SMT. S. R. VENKATARAMAN versus UNION OF INDIA & ANR.

SMT. S. R. VENKATARAMAN

UNION OF INDIA & ANR. November 2, 1978

[P. N. SI!!NGHAL AND 0. CHINNAPPA REDDY, JJ.]

Pilling v. Abergele Urban District Council, [1950] 1 K.B. 636; referred to.

( 4) Th<' 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. 483. [206C-D)

(5) Wl>m public body is prompted by mistaken belief in the existence of non-e:xisting fact or circumstance it will be an error of fact. That is so clearly ullreasonable that what is done under such mistaken belief n1ight . almost be said to have been done in bad faith. [206E]

(6) Whe:n 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 po\ver which was vested in the authority concerned as it lwd admitted the influence of extraneous matter. [206H-207A]

(7) It will be gross abuse of legal power to punish person or destroy her service career in manner not warranted by law by putting rule which mttkes useful provision for the prematllre retirement of Government servants only in the "public interest", to purpose wholly unwarranted by it, and to arriTe at qui_te contradictory result. [206F]

(8) An administrative order which is based on reasons of fact which do not exist must be held to be infected with abuse of power. [206G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2764 of 1977.

(From the Judgment and Order dated 24-11-76 of the Delhi High Court in C.R.P. No. 1264/76).

M. K. Ramamurthi and Faqir Chand for the appellant.

P. N. Le.khi and Girish Chandra for the respondent.

The Judgment of th~ Court was delivered by

SmNGHAL J., This appeal by special leave is directed against an crder of the Delhi High Court dated November 24, 1976, dismissing the appellant's writ petition in limine.

The appellant was promoted to the post of Director in the All Indla 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 Indla 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 au,e of 50 years on April 11, 1972, and the President was of the opinion that her retireIINnt was in the "public interest". The appellant made representation on April 6, 1976, but it was rejected on July 1, 1976. She therefore filed writ petition in the Delhi High Court under article 226 of the Constitution in which she, inter alia, made mention of the hostile attitude of one V. D. Vyas who took over as Chairman of the

Central Board of Film Censors from her on February 11, 1972. She also made 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 justifica-tion". She stated that "her integrity had never been considered doubt-ful 28 years before or 4 years after the period of 2t months she spent under him." It was also contended that some baseless allega-tions 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 particular-C ly pointed out that as she was confirmed in the post of Director on April 28, 1973, with retrospective effuct 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 ii.lso pointed out that the order cast stigma on her conduct, character and integrity and amounted to the imposition of one of the major penal-D 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 appel-lant was retired in the "public interest" under clause (j) (i) of rule 56 of the Fundamental Rule!!. That rule provides as follows,-

"(j) Notwithstanding anything contained in this rule the appropriate anthority shall, if it is of the opinion that it is in the public interest to do so have the absolnte right to retire any Government servant by giving him notice of not foss than three months in writing or three months' pay and a1lowances 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, Govermnent 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 Govermnent did not apply its mind to her service record and the facts and circumstances of her case. It has been speci-

fically pleaded that the power under F.R. 56(j) (i) has not been exer-cised "for the furtherance of public interest" and has been based on "collateral grounds". The app~llant has pointed out in this connection that her service record was examined in March, 1976, by the Depart-mental 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 sh•e was retired because oE bias and animosity. Our attention has also been invited to the favourable entry which was made in her confidential report by th~ Secretary of the Ministry.

Mr. Lekhi, learned counsel for the Union of India, produced the relevant record of the appellant for our perusal. While doing so he fraukly 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 position to support that unfair order. ·

We have made mention of the plea of malice which the appellant · [D ]had taken in her writ petitiou. Although she made an allegation of malice against V. D. Vyas under whom she served for very short period and got an adverse P~port, there is nothing on the record to show that Vyas was able to influence the Central Government in making the order of prcm.rture retirement dalf'..d March 26, 1976. It is not there-E fore the case of the appellant that there was actual malicious intentiou on the part of the Governm~nt 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)-

" person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innoo~nt mind; he is taken to know the law, and he wust act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his. mind is con-cerned, 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 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 qw~stion of malice in · law in this case, for it is trite law that if discretionary power has been exercised for an nnauthorised pnrpose, it is generally immaterial whether

(1) [ 1914] A.C. 808 at p. 813.

2 06 SUPREME COURT REPORTS

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('),. whern duty t<i determine quec5tion 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 acconnt 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 public duty by exer-cising their discretion take into account matters which the Courts consider not to be proper for the guidano~ 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.(')

We are in agreement with this viey. It is equally true that there· will be an error of fact when public bcdy is prompted by mistaken belief in the existence of non-existing fact or circumstance. This is so clearly unreasonable that what is done under such mistaken belief might almoot be said to have been done in bad faith; and in actual exper>~nce, and as things go, these may well be said to run into one another.

The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will there-fore be gross abuse of legal power to punish person or destroy her service career in manner not warranted by law by putting rule which: mak>~s useful provision for the premature retirement of government servants only in the "public interest", to purpose wholly unwarranted' by it, and to arrive at quite contradictory result. An administrative order which is based on reasons of fact which do not exist r.rnst there-· fore be h·~ld to be infected with an abuse of po;ver.

So when it has been conceded by Mr. Lekhi that there was nothing on tlie record which would justify the impugned order dated March 26, 1976, t)f the app~!Jant's premature reti.rement under clause (j) (i) of

(!) [1950] 1 K.B. 636. (2) 24 Q.B.D. 371 at p. 375. (3) [1924) l Ch 483 .

rule 56 of the Fundamental Rules, and that the Government was not in 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 auth-ority cono~rned. The appeal is allowed with costs and it is ordered accordingly.

N.V.K. , '

Appe11l allowed .