TMI Blog2006 (11) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... dge held that the Board alone was responsible because it was not established that any individual officer was responsible for it and dispute only have been revealed by the high-power enquiry which the court was incompetent to direct, the award for damages is clearly indefensible. The High Court's judgment suffers from various infirmities. Firstly, it has taken a confused view of the matter. It failed to notice that the trial court itself had held it was highly probable that the plaintiff was suspended for extraneous reasons. This conclusion is based on surmises and conjectures. This had not been established. As noted, the High Court noted that the Trial Court itself held that the plaintiff was not entitled to damages for defamation. But while affirming the judgment and decree, it held that the damages granted for harassment must be read as damages for malicious prosecution causing harassment. To say the least, all the conclusions are confusing, contradictory and do not convey any sense. Looked at from any angle the impugned judgment of the High Court is indefensible and is set aside. The appeal is allowed but without any order as to costs. - Hon'ble Judges Dr. Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 six months from the date of commencement of the enquiry. Respondent No.1 continued to make grievance about denial of opportunity and on 10th September, 1986 purportedly written statement of defence in reply to the charge sheet was filed. By order dated 12th December, 1986, the respondent no.1 was informed that his reply was found unsatisfactorily and it was decided to hold an enquiry. Subsequently enquiry officer was appointed and a presenting officer was also appointed. However, the enquiry officer appointed originally was replaced because of respondent no.1's allegations of bias. 4. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to retire on 28th February, 1989 and all retrial benefits were to be paid to him within three months of the retirement. The reasons for holding 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 on June 1987. The report of the Enquiry officer was submitted on June 6, 1987 and thereafter the impugned second Show cause notice was issued on June 19, 1987. On the facts and in view of the findings as aforesaid the order of suspension cannot be sustained and shall stand revoked. The petitioner shall be treated as on duty for the entire period of suspension for all purposes. He shall be paid all his arrear of salaries after adjustment of subsistence allowance already drawn within two weeks from the date of communication of this order. 7. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the application of the plaintiff. In this order it is stated that the learned Government pleader Mr. Narayan Gupta for the Defendant Board submitted that there existed no preliminary enquiry report on the subject covering the alleged misconduct or breach of discipline. It is, therefore, clear that without holding preliminary enquiry the plaintiff was suspended and the charges were framed against him. In the judgment, exhibit 14, passed on 9.2.89 by the Hon'ble justice Shri Ajit Kumar Sengupta of the Calcutta High Court in C.O. No. 5644(w) of 1987 issued by the 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. 9. 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 officers of the defendant No. 1 Board abused the power vested in them to put the plaintiff in trouble. Practically an individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plaintiff's suit should lie. The High Court upheld the award of ₹ 50,000/- as damages for harassment by treating the same as damages for malicious prosecution causing harassment by way of mental pain etc. The award of ₹ 50,000/- was for loss of reputation was also upheld. 11. In support of the appeal, learned counsel for the appellant- Board submitted that the whole basis on which the compensations have been awarded are really non-existent. The conclusions of the trial judge and the 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 observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal usage has etymology in its favour. The Latin malitia means badness, physical or moral - wickedness in disposition or in conduct - not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose. design, intent, or motive. But intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. 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 actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and wilful doing of an act with awareness of a plain and strong likelihood that such harm may result. The Model Penal Code does not use 'malice' because those who formulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levolent 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 the term malice in English law, his been a question of much difficulty and controversy; and those who made through the many disquisitions on the subjects in text- books and judicial opinions are almost tempted to the conclusion that the meaning varies almost infinitely, and that the only sense which the term can safely be predicated not to have in ant given legal context is that which it has in popular language, viz., spite or ill-will. It certainly has different meanings with respect to responsibility 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or evil belonging to and connected with the object; and it settles into a permanent hatred of his person and of everything relative to him - (Gogan) Malignity is cruel malevolence, or innate love of harm 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 not necessarily inconsistent with an honest purpose. Malice in law. 'Malice in law means implied malice. MALICE IN LAW simply means a depraved inclination on the part of a person to disregard the rights of others, which intent is manifested by his injurious acts. Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. S.R. Venkataraman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischiefa wrongful act intentionally done, without legal justification or excuse. 'A malicious act is an act characterised by a preexisting or an accompanying malicious state of mind. Malicious Prosecution Malice. Malice means an improper or indirect 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. The principles to be borne in mind in the case of actions for malicious prosecutions 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' and 'want of reasonable and probable cause.' have refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings known to be groundless 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 is entitled though not always bound to lay before a judicial officer information as to any criminal offence which he has reasonable and probable cause to believe has been committed, with a view to ensuring the arrest, trial, and punishment of the offender. This principle is thus stated in Lightbody's case, 1882, 9 Rettie,934. When it comes to the knowledge of anybody that a crime has been committed a duty is laid on that person as a citizen of the country to state to the authorities what 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper motive in taking an action . This is sometimes described as malice in fact . Legal malice or malice in law means something done without lawful excuse . In other words, it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It 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. (Hunstanton) Ltd. v. Stevens (1955) 1 QB 275: (1954) 3 All ER 677 (CA), the Court of Appeal has reliance on the decision of Lumley v. Gye (1853) 2 E B 216: 22 L.JQB 463 as below: For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye (1853) 2 E B 216: 22 LJQB 463 where Crompton, J. said that it was clear law that a person who wrongfully and maliciously, or, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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