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2006 (11) TMI 667 - SUPREME COURT OF INDIA

2006 (11) TMI 667 - SUPREME COURT OF INDIA - TMI - Appeal (Civil) No. 5188 of 2006 (Arising out of SLP (C) No. 23556 of 2004) - Dated:- 24-11-2006 - Arijit Pasayat And Lokeshwar Singh Panta, JJ. JUDGMENT Arijit Pasayat, J. Leave granted. Challenge in this Appeal is to the order passed by a Division Bench of the Calcutta High Court dismissing appellant's appeal questioning correctness of the order passed by a learned 7th Assistant District Judge at Alipore, 24, Parganas (South). By the judgme .....

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and a First Information Report (in short the 'FIR') was lodged against him and others per alleged misconduct and commission of various offences. Initially, the respondent No.1 was placed under suspension for alleged acts of misconduct while functioning as the Superintending Engineer, pending investigation drawal and disposal of the disciplinary proceedings against him. Since no charge sheet was issued within a period of four months a writ petition was filed by the respondent No.1 for qua .....

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efore the High Court. In the said writ petition order passed by the High Court was with to the effect that the enquiry should continue upon proper inspection being granted to all documents for which inspection had been offered, excepting three items. It was further directed that the enquiry should commence after grant of proper opportunity to the respondent no.1 in accordance with law. It was, further directed that the enquiry should be completed as expeditiously as possible preferably within si .....

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er appointed originally was replaced because of respondent no.1's allegations of bias. Another writ petition was filed by the respondent No.1 for quashing the proceedings. The High Court directed the appellant to complete the enquiry by 15th May, 1987. It was clearly indicated therein that if there is default in completing the enquiry within the stipulated time, it would be presumed that the Board was not interested to proceed with the matter so far as the respondent no.1 is concerned, and t .....

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nishments. A writ petition was filed challenging the enquiry proceeding, enquiry report and the second show cause notice. The only ground taking during the hearing of the writ petition was that the respondent No.1 who was the writ petitioner had not been given reasonable opportunity of hearing and thus natural justice was denied to him. Further he was not given access to several vital documents. It was contended that the findings recorded by the enquiry officer were perverse and no reasonable pe .....

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time. Materials on record clearly established misconduct. Therefore, grievances of the writ petitioner cannot be entertained. The High Court after considering the rival stand and materials on record ultimately came to hold as follows: "To sum up: the enquiry proceedings were vitiated because the petitioner was not given reasonable opportunity of being heard. The petitioner was not given inspection of several vital documents which prejudiced his defence. The findings of the Enquiry Officer w .....

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ding the enquiry proceedings vitiated were indicated as follows: "In that view of the matter no further proceedings shall be initiated against the petitioner. The suspension order was issued on 30th July, 1985 and the petitioner had to move this Court twice, firstly for a direction upon the respondents to issue a charge sheet and secondly for completion of the proceedings within a reasonable time. The charge-sheet was only issued on January, 17, 1986 and the enquiry proceeding was concluded .....

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om the date of communication of this order." It is not in dispute that the directions given by the High Court in the writ petition have been carried out. Subsequently the respondent No. 1 filed a civil suit before the Assistant District Judge, Alipur, claiming damages for the institution of disciplinary proceedings against him by the appellant and also the newspaper which purportedly made publication of certain news items. The suit was registered as Money Suit No.3 of 1990 and was subsequen .....

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in C.O. No. 5644(w) of 1987 that it has not only affected his reputation but also visited him with serious civil and pecuniary consequences. The plaintiff submits that he has suffered great mental shock on account of such humiliation at the hands of the defendant Nos. 1-3 after having completed his long spell of a brilliant career in service. The Plaintiff had to engage reputed barristers and advocate at different stages of litigation for which the plaintiff had to spend a huge sum of money with .....

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intly and severally against the defendants for : A recovery of the sum of ₹ 5,00,000/- as compensation of damages; Costs of suit; Some other relief or reliefs." The trial court decreed the suit inter alia with the following findings : "The exhibit 12 is the certifies copy of the order dated 13.6.1996 passed by the Hon'ble High Court at Calcutta in C.O. No. 7164(W) of 1986 issued by the Hon'ble Court on the application of the plaintiff. In this order it is stated that the .....

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Hon'ble Court on the writ application of the plaintiff held that the plaintiff should not have been suspended on the fact of the case. It is, therefore highly probable that the probable that the plaintiff was suspended for extraneous reasons." The plaintiff- respondent No.1 was held entitled to damages of ₹ 50,000/- for harassment and another ₹ 50,000/- for loss of his reputation. Interestingly it was held as follows: "There are no evidence to say actually who were the .....

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fendants." Appeal was filed by the appellant before the Calcutta High Court which as noted above dismissed the appeal. Certain observations which are relevant are to the following effect. "The said judgment was no doubt relied upon by the learned Judge decreeing the suit. He held that it was highly probable that the plaintiff was suspended for extraneous reasons. Technically, it was said that the plaintiff was not entitled to damages for defamation. We are of the opinion that the newsp .....

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l tell their mates in School or College their father is innocent but has been proceeded against wrongfully; he will answer at all social gatherings shortly and sympathetic questions about the stage of the disciplinary Enquiry. In our opinion, the suit was maintainable and properly decreed. There can remain no doubt on the basis of the findings of fact that the plaintiff had suffered a grievous wrong. The limitation in English Courts on the basis of the law prevailing in England do not extend and .....

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n made the victim of a proceeding, the cause for which was not a genuine inquiry into the conduct of the petitioner. What the other extraneous cause was if any, would be for the employee to allege and the employer to show as non-existent. If no causes is shown, the court is compelled to conclude that the cause was extraneous and not worth bringing out into the open public scrutiny. The present trend of the law is to allow a remedy if a wrong has been committed. On that principle also, the plaint .....

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High Court are contrary to the whole foundation of the judgment and decree of the trial court. In the order passed by learned Single Judge in respect of the departmental proceedings there was no observation about the proceedings being mala fide or for extraneous reasons. Only on the ground that reasonable opportunity was not granted to the employee-respondent No.1, the writ petition filed by him was allowed. There was no specific averment regarding any malicious prosecution. The only averment ma .....

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o the conclusion that the amount appeared to have been awarded as damages for malicious prosecution causing harassment. The reasons are unfathomable. In response, learned counsel for the respondent No.1 supported the judgment and decree of the trial court as affirmed by the High Court by the impugned judgment. According to him an honest officer was being harassed by unnecessary proceedings and the innocence of the respondent no.1 was established by the judgment of the High Court in the writ peti .....

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or malice in law which means publication without law full excuse and does not depend upon the defendant's state of mind. The intent, without justification or excuse, to commit a wrongful act. II. Reckless disregard of the law or of a person's legal rights. Ill will: wickedness of heart. This sense is most typical in non legal contexts". "Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liabili .....

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otive. The term malice is applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean one of the two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive." "Malice in the legal sense imports (I) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actua .....

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lice" in the legal acceptance of the word is not confined to personal spite against individuals but consists in a conscious violation of the law to the prejudice of another. In its legal sense it means a wrongful act done intentionally without just cause or excuse. 'Malice", in its legal sense, does not necessarily signily ill- will towards a particular individual, but denotes that condition of mind which is manifested by the intentional doing of a wrongful act without just cause o .....

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on. It is a question of motive, intention or state of mind and may be defined as any corrupt or wrong motive or personal spite or ill will. 'Malice' in common law or acceptance means ill-will against a person, but in legal sense it means a wrongful act alone intentionally without just cause or excuse. It signifies an intentional doing of a wrongful act without just cause or excuse or an action determined by an improper motive. "MALICE", in common acceptation, means, ill will ag .....

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to do a wrongful act; a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief. "MALICE" means wickedness of purpose, or a spiteful or malevolent design against another; a purpose to injure another; a design of doing mischief, or any evil design or inclination to do a bad thing, or a reckless disregard to the rights of others, or absence or legal excuse, or any other motive than that of bringing a party to justice." "The meaning of t .....

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bility for civil wrongs and responsibility for crime; and even with respect to crime it has a different sense according as it is used with reference to murder, libel, or the capacity of an infant to commit crime, expressed by the rule malitia supplet act item." (Ency. of the Laws of England). Ordinarily, the absence of reasonable and probable cause in instituting a proceeding which terminates in favour of the plaintiff, would give rise to the inference of malice. MALICE has been said to mea .....

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rect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will; it may be due to a desire to obtain a collateral advantage. MALICE in fact is malue animus indicating that action against a party was actuated by spite or ill will against him or by indirect or improper motives. Malice: hatred: aversion: antipathy: enmity: Repugnance: ill-will: rancour: malevolence: Malignity: malignancy. Hatred is a very general term .....

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ive belief, often utterly gratuitous. Enmity is the state of persona! opposition, whether accompanied by strong personal dislike or not; as "a bitter enemy." Repugnance is characteristically employed of acts or courses of action, measures, pursuits, and the like. Ill-will is a settled bias of the disposition. It is very indefinite, and may be of any degree or strength. Rancour is a deep seated and lasting feeling of ill-will. It preys upon the very mind of the subject of it. While enmi .....

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for the sake of doing it. It is malice the most energetic, inveterate, and sustained. Malice in fact. "Malice in fact" means express malice. MALICE IN FACT OR ACTUAL MALICE, relates to the actual state or condition of the mind of the person who did the act. Malice in fact is where the malice is not established by legal presumption or proof of certain facts, but is to be found from the evidence in the case. Malice in fact implies a desire or intention to injure, while malice in law is n .....

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of India (AIR 1979 SC 49, 51). MALICIOUS. Done with malice or an evil design; wilful; indulging in malice, harboring ill-will, or enmity malevolent, malignant in heart; committed wantonly, wilfully, or without cause, or done not only wilfully and intentionally, but out of cruelty, hostility of revenge; done in wilful neglect of a known obligation. "MALICIOUS" means with a fixed hate, or done with evil intention or motive; not the result of sudden passion. Malicious abuse of civil proce .....

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l process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by order of Court - the malicious perversion of a regularly issued process, whereby an improper result is secured. There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object - not the purpose which it is intended by the law to effect; in other words, a perversion of it. Malicious abus .....

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r attachment in execution of a decree or before judgment, order or injunction or appointment of receiver, arrest of a ship, search of the plaintiff's premises, arrest of a person by police. Malicious abuse of process of Court Malicious act Bouvier defined a malicious act as "a wrongful act, intentionally done, without cause or excuse." A malicious act is one committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischiefa wrongful act intenti .....

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rosecutions are these:Malice is not merely the doing a wrongful act intentionally but it must be established that the defendant was actuated by mains animus, that is to say, by spite of ill- will or any indirect or improper motive. But if the defendant hod reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; 'malice' .....

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can succeed and which finally ends in failure." "A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause." "A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong a .....

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ause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein. 1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause. 2. The cause of action resulting from the institution of such a proceeding. Once a wrongful prosecution has ended in the defendant's favor, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) ma .....

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ndless is not abuse of process, but is governed by substantially the same rules as the malicious prosecution of criminal proceedings." 52 Am. Jur. 2d Malicious Prosecution S. 2, at 187 (1970). The term 'malice,' as used in the expression "malicious prosecution" is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives. As a general rule of law, any person i .....

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t he knows respecting the commission of the crime, and if he states, only what he knows and honestly believes he cannot be subjected to an action of damages merely because it turns out that the person as to whom he has given the information is after all not guilty of the crime. In such cases to establish liability the pursuer must show that the informant acted from malice, i.e., 'not in discharge of his public duty but from an illegitimate motive, and must also prove that the statements were .....

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s, in certain events, entitled to a remedy. (See H. Stephen, Malicious Prosecution, 1888; Builen and Leake, Prec. P1., Clerk and Lindsell. Torts, Pollock, Torts; LQR. April 1898; Vin., Abr., tit. "Action on the Case" Ency. of the Laws of England.) "MALICIOUS PROSECUTION" means that the proceedings which are complained of were initiated from a malicious spirit, i.e, from an indirect and improper motive, and not in furtherance of justice. [10 CWN 253 (FB)] The performance of a .....

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Malice' means and implies spite or ill-will. Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. (See Prabodh Sagar v. Punjab State Electricity Board and oth .....

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t is deliberate act in disregard of the rights of others". (See State of A.P. v. Govardhanlal Pitti (2003) 4 SCC 739). The word "malice" in common acceptation means and implies "spite" or "ill will". One redeeming feature in the matter of attributing bias or malice is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record. In the case of Jones Bros. (Huns .....

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ant by harbouring and keeping the servant after he has quitted his master during his period of service, commits a wrongful act for which he is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse: Bromage v. Prosser (1825) 1 C&P 673: 4 B&C 247. 'Intentionally' refers to the doing of the act; it doe not mean that the defendant meant be spiteful, though sometimes, as for instance to rebut a plea of privilage in defamation, m .....

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ough, so far the state of mind is concerned, he acts ignorantly, and in that sense innocently". Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or fro want of reasonable or probable cause. (See S.R. Venkatarcunan v. Union of India (1979) 2 SCC 491) Malice-per common law. "Malice" in common law or acceptance means ill will against a person, but in legal sense means a wrongful act done int .....

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