TMI Blog1963 (9) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 unnecessary 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 commendable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrington, 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 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([1915] A.C. 372.) 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 ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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([1885] 29 C.D. 459.)). 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, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tees 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1956-57. Under the rules the Chief Minister was not entitled to this type of medical attention. There was some dispute as regards the 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 ₹ 16.00 for her examination at his residence. On the excuse that this complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 ₹ 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 wrote a letter to the 'Blitz' confirming the allegations against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it yesterday and then left.......................................... Surinder : Alright, it was a mistake. Now you tell me. Dr. P. Singh : Otherwise it is alri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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, 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 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 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 friend of 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 in covenience of providing Kirpa Singh with board and 49-2 S. C. India/64 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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 inquiries as well as the bona fides of the action taken under the impugned order were questioned the report of the Vigilance 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellant 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 Surrender and the incidents connected with it and the sending out of Kirpa 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 transferred 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 sanctioned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 grievances 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. 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 Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 actuall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 therefore 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 Government. 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 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, unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant's suspension without calling him to explain the charges first, was bad as the proceedings to suspend him were of a quasi-judicial 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 quasi-judicial is the enquiry instituted against the Government servant on the charges of misconduct, an enquiry during 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 suspen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ([1958] C.R. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rced 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 control of -the Government so long as the departmental enquiry against him on a charge of misconduct is not concluded 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 Government to decide what action should be taken against the Government servant for certain misconduct. Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ron, 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 controverted 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 conversation 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-recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r'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 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 circumstances would sarcastically speak to the appellant about the strong assurances he had given about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minister as no ill-effect followed. 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 attit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 published 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 hospital 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the time 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 investigating 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 could have taken adequ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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