# S. PRAT AP SINGH v. THE STATE OF PUNJAB

- **Citation:** [1964] 4 S.C.R. 733
- **Court:** Supreme Court of India
- **Decided:** 1961-01-27
- **Bench:** S. K. Das, K. Sobba Rao, Raghubar Dayal, N. Rajagopala Ayyangar, J. R. MuoHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-prat-ap-singh-v-the-state-of-punjab-3186
- **Pages:** 64

## Headnote

Punjab Civil Services (Punishment and Appeal) Rules, 1952,
rr. 3, 26(d), 8, 15-Grant of leave-Power to revoke-Date
of
I.eave preparatory to retiren1ent-lf date of retirement-Conimunication of revocation after retirement-When effective-Right
to
retire-Restriction on-Constitution of India, 1950,
Arts. 19 and
23-V alzdity of r. 326( d).
Tape Record of Conversations-ff legal
evidence-Weight
of.
Government-Order of revocation of leave and suspe:is.·on of
Civil Servant-Potver exercised mala fide and on extraneous considerations-High Court-Jurisdiction to interfere under Art. 226
of the Constitution.
The appellant \Vas a civil surgeon in the employ1nent of the
State of Punjab having joined the Punja!.> Civil Medical Service
in 1947.
In 1956 he was posted to jullunder where he remained
till he proceeded on leave preparatory to retirement sometin1e
in
December 1960. His leave was sanctioned on December 18, 1960,
and \Vas notified in the Punjab Gazette dated January 27,
1961.
On June 3, 1961, the Governor of Punjab passed orders suspending the appellant \Vith im1nediate
effect and
revoking
his
leave as the Governn1ent 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 \vhich "A government servant under suspension on a charge of misconduct shall not
be
. . . . . . . . . . . . permitted to retire on his reaching the date of compulsory retiren1ent but should be retained in service
until
the
enqui;y 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
h.e should be retained in service beyond that date till the ~01nple~
tlon of the departmental enquiry.
These orders reached the appella.nt, ac~ording to .him, only on June 19, 1961, but they were
published 10 the Pun1ab Governn1ent 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. leg~lity of the orders of suspension, revoc~tlon of .lea\:e, :etent1on 1n service after the date of superannua-
~1on an~ 1nstitutton of the departmental enquiry, on the grounds
inter a/ta, ( 1) that the rules governing his service did not empow7r the Governor to pass the impugned orders, and (2) that
the impugned orders were passed ma/a fide by or at the instance
1963
September 2
1963
S. P<alap Singh
v.
The State of
Puniab
734
SUPREME COURT REPORTS
[1964]
of the Chief Minister, who was in-charge of the department of
Health and who 'vas personally hostile to him by reason of cer·
tain 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 dis·
cretion to revoke it even after the officer to whon1 leave had been
sanctioned had proceeded on leave.
(ii) The date from which a Government servant is on leave
preparatory to retir.:n1ent cannot be treatCd as the date of his re·
tirement 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 com1nunicated to the appellant only
after the date of his retirement, since he was on leave the said
orders were effective frOm the 1noment they were issued.
Bachhittar Singh v. State of Punjab, A.LR. 1963 S.C. 395 and
State of .Punjab v. Sodhi Sukhdev Singh. [1961] 2 S.C.R. 371, distinguished.
(iv) The appe.llant had no absolute right to opt for retirement on his attain~ng the age of superannuation, that any such
option was subject to

## Text

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4 S.C.R.
SUPREME COURT REPORTS
733
S. PRAT AP SINGH
v.
THE STATE OF PUNJAB
(S. K. DAS, K. SOBBA RAO, RAGHUBAR DAYAL, N. RAJAGOPALA AYYANGAR AND J. R. MuoHOLKAR, JJ.)
Punjab Civil Services (Punishment and Appeal) Rules, 1952,
rr. 3, 26(d), 8, 15-Grant of leave-Power to revoke-Date
of
I.eave preparatory to retiren1ent-lf date of retirement-Conimunication of revocation after retirement-When effective-Right
to
retire-Restriction on-Constitution of India, 1950,
Arts. 19 and
23-V alzdity of r. 326( d).
Tape Record of Conversations-ff legal
evidence-Weight
of.
Government-Order of revocation of leave and suspe:is.·on of
Civil Servant-Potver exercised mala fide and on extraneous considerations-High Court-Jurisdiction to interfere under Art. 226
of the Constitution.
The appellant \Vas a civil surgeon in the employ1nent of the
State of Punjab having joined the Punja!.> Civil Medical Service
in 1947.
In 1956 he was posted to jullunder where he remained
till he proceeded on leave preparatory to retirement sometin1e
in
December 1960. His leave was sanctioned on December 18, 1960,
and \Vas notified in the Punjab Gazette dated January 27,
1961.
On June 3, 1961, the Governor of Punjab passed orders suspending the appellant \Vith im1nediate
effect and
revoking
his
leave as the Governn1ent 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 \vhich "A government servant under suspension on a charge of misconduct shall not
be
. . . . . . . . . . . . permitted to retire on his reaching the date of compulsory retiren1ent but should be retained in service
until
the
enqui;y 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
h.e should be retained in service beyond that date till the ~01nple~
tlon of the departmental enquiry.
These orders reached the appella.nt, ac~ording to .him, only on June 19, 1961, but they were
published 10 the Pun1ab Governn1ent 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. leg~lity of the orders of suspension, revoc~tlon of .lea\:e, :etent1on 1n service after the date of superannua-
~1on an~ 1nstitutton of the departmental enquiry, on the grounds
inter a/ta, ( 1) that the rules governing his service did not empow7r the Governor to pass the impugned orders, and (2) that
the impugned orders were passed ma/a fide by or at the instance
1963
September 2
1963
S. P<alap Singh
v.
The State of
Puniab
734
SUPREME COURT REPORTS
[1964]
of the Chief Minister, who was in-charge of the department of
Health and who 'vas personally hostile to him by reason of cer·
tain 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 dis·
cretion to revoke it even after the officer to whon1 leave had been
sanctioned had proceeded on leave.
(ii) The date from which a Government servant is on leave
preparatory to retir.:n1ent cannot be treatCd as the date of his re·
tirement 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 com1nunicated to the appellant only
after the date of his retirement, since he was on leave the said
orders were effective frOm the 1noment they were issued.
Bachhittar Singh v. State of Punjab, A.LR. 1963 S.C. 395 and
State of .Punjab v. Sodhi Sukhdev Singh. [1961] 2 S.C.R. 371, distinguished.
(iv) The appe.llant had no absolute right to opt for retirement on his attain~ng 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 of the 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.
(vii) Rendering of the tape recorded conversation
can
be
legal evidence by
~ray of corroborating the state1nents 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 had 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 so1nething which it could not properly take into
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
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4 S.C.R
SUPREME COURT REPORTS
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 correctness of an order of Government could be canvassed and it has
no jurisdiction to substitute its own vie\v as to the necessity
or
desirability of initiating disciplinary proceedings, for the entirety
of the power, jurisdiction in that regard is vested in 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.
If the act is in excess ot 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 de·
duccd 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, [1924] 1 Ch. 483,
Earl Fitzwilliam v. Minister of T. &- C. Plonning, [1951] 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 \Vhich 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 Constitution 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 \Vas
reached.
1963
S. Pratap Singh
v.
The State of
Punjab
. 1963
S. Pratap Singh
"·
The State of
Punjab
~
736
SUPREME COURT REPORTS
[1964]
Crv1L 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.
Ayyangar, /.
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
deli11ered 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 tlie 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 unnecessary to cumber this ju<lgment 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-
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4 S.C.R.
SUPREME COURT REPORTS
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 pcrsoually his vengeance on the appellant.
The relevant rules on the topic as well as their interpretation have all been dealt in the judgment of Dayal, J., and
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. u~warranted besides being contrary to what this
Court said m State of Bihar v. Abdul Majid('). 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.
_ W e_~hall now proceed to deal with the second point
( 1) [1954] S.C.R. 786 at p. 799.
1963
S. Pratap Singh
v.
The State of
Punjab
Ayyangar, f.
1963
S. Pratap Singh
v.
The State of
Punjab
Ayyangar, f.
738
SUPREME COURT REPORTS
[1964]
urged before us viz., that the order was passed ma/a 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 Government. 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 ma/a 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
:iside, 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
:ind would not vitiate administrative orders. As Lord Denning said in Lazarus Estates, Ltd. v. Beasfry(') :
"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 this aspect more fully or in greater detail. If this
were put aside, the second ground of attack on the ord.ers
may be viewed from two related aspects-of ultra vzres
( 1 ) [1956] 1 All E.R. 341, 345.
4 S.C.R.
SUPREME COURT REPORTS
739.
pure and simpk 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(')
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 ma/a 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.J., 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
--·----
-··---·--
(') [1925] A.C. 338.
(2) (1926] 1 Ch. 66, 85.
1963
S. Pratap Singh
v.
The State of
Puniab
Ayyangar, f.
1963
S. Pratap Singh
v.
Tiu: Stat< of
Punjab
Ayyaniar, f.
740
SUPREME COURT REPORTS
[1964]
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(') at page
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(") as also Lord Denning's observation Earl
Fitzwilliam etc. v. Minister of T. & C. Planning(')). 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-
(') [1915] A.C. 372.
(') [1924] 1 .Ch. 483.
(3) ( 1951] 2 !CB. 284, 307.
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4 S.C.R.
SUPREME COURT REPORTS
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 an alien purpose-wreaking the minister's vengeance
on the officer would be mala fide and a colourable exercise of that power, and would therefore be struck down
by the Courts. In this connection we might cite a dictum
of Lord Lindley in General Assembly of Free Church etc.
v. Overtoun(')
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 ~nd!rect motive or purpose, or bad faith or personal
1ll-w1ll 1s. not to be held established except on clear proof
thereof, 1t 1s
obv10usly difficult to establish the state of
a _mai:'s mi.nd, for that is what the appellant has to establish 111 this case, though this may sometimes he done
(See Edgington v. Fitzmaurice(')).
The difficult is
not less.e:ied when one has to establish that a person yin
the pos1t10'.1 of a minister apparently acting on the Iegiti-
!"at~ exemse of pow~r has, in fact, been acting mala fide
r t' e sense of pursumg an illegitimate aim.
we must
10\\ ever, . demur to the suggestion that mala fide in th~
dmse of ·.improper motive should be established only by
I~ct ~v1 ence that is that it must be discernible from the
or er impugned or must be shown from the notings in
(') [1904] A.C. 515, 695.
(') [1885] 29 C.D. 459.
1963
S. Pratap Singh
v.
The State of
Puniab
Ayyangar, /.
1963
S. Prat•p Si•zh
v.
The State of
Punjab
Ayyangar, ].
742
SUPREME COURT REPORTS
[1964]
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
•t~ting 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 ~o 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. 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. In such an
event the fact that the authority concerned denies
the
charge of mala fides, or asserts the absence of oblique motives 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
-
,--
4 S.C.R.
SUPREME COURT REPORTS
743
and weighed \he 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 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 J ullundur. 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
soi;ne expensive articles like Singer Sewing machines etc: to be sent to her gratis. This the appellant did but the refusal to comply with fur1963
S. Pratap Singh
v.
The State of
Punjab
Ayyan gar, f.
1963
S. Pratap Singh
v.
The State of
Punjab
Ayyan gar, /.
744
SUPREME COURT REPORTS
[19641
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 accommoc\atcd 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 came
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 or
the appellant as an expert to instruct the police
officers who were conducting the prosecution in
what is known as the Kamal 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 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
4 S.C.R.
SUPREME COURT REPORTS
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 yean
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 appellant 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
1963
S. Pratap Singh
v.
The State of
Punjab
Ayyangilr, /.
1963
S. Pratap Singh
v.
The State of
Punjab
Ayyangar, f.
746
SUPREME COURT REPORTS
[1964]
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 Govern·
ment had already with them the complaint made on Oc-·
tober 29, 1960 relating to the charge that the appellant had
improperly demanded a sum 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, 1%1 there appeared ah 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 Mi-
. nister. 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, 1%1 and this does not seem improbable becaus\:
it is common know ledge 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 (Vigi1ance), Jullundur addressed
a
communication to the appellant enquiring whether the
appellant who had by then gone to Kanpur (it is to be
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 tl1e appe!-
lant and examined the records at the hospital in February, 1961.
On March 18, 1961 the appellant's wife
v
•
-
-
4 S.C.R.
SUPREME COURT REPORTS
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 of the
allegations found in the newspaper. It is the case of the
appellant that these matters occasioned the hostility of the
Chief Minister and that the impugned orders_ passed in
June 1961 were passed not bona fide for the purpose of
conducting an inquiry into his conduct but to harass and
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 ma/a 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 character having been made against the Chief Minister, there
could only be two ways in which they could be repelled.
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 evi-
<lance 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
1963
S. Pratap Singh
v.
The State of
Puniab
Ayy•ngt1r, f.
1963
S. Pratap Singh
v.
The State of
Punjab
Ayyangar, f.
748
SUPREME COURT REPORTS
[1%4]
same on oath. In the present case there were serious allegations 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 ;:ircumstances 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 inadmis,sible. 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 gronnd for
-
-
" .
-
•
-
4 S.C.R
SUPREME COURT REPORTS
749
the Court to discount wholly its evidentiary value. But
in the present case ~e 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 were the subject of allegations in the petition. Before the written statement of
the State was 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 petition . . . . . . . . . . . . The applicant, therefore, prays that the petitioner may be ordered to place
on record . . . . . . . . the 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 . . . . . . . .