S. Pratap Singh Vs. The State of Punjab [1963] INSC 186 (2 September 1963)
02/09/1963 AYYANGAR, N. RAJAGOPALA AYYANGAR, N. RAJAGOPALA DAS, SUDHI RANJAN SUBBARAO, K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1964 AIR 72 1964 SCR (4) 733
CITATOR INFO:
R 1965 SC 596 (11) R 1967 SC 295 (58,60) R 1968 SC 147 (6) R 1970 SC 214 (14) R 1971 SC 530 (233,234,235,387) R 1971 SC1162 (18,19,20) R 1972 SC1004 (54) R 1973 SC 157 (21) R 1975 SC 550 (9) R 1976 SC1207 (357) R 1976 SC1737 (6) RF 1977 SC 629 (16) R 1979 SC 220 (24) R 1982 SC1043 (15) R 1986 SC 3 (145) R 1986 SC 872 (118,126) RF 1991 SC2160 (20) RF 1992 SC 604 (112)
ACT:
Punjab Civil Services (Punishment and appeal) Rules, 1952, rr. 3, 26(d), 8, 15--Grant of leave-Power to revoke-Date of leave preparatory to retirement--If date of retirement--Communication of revocation after retirementWhen effective-Right to retire--Restriction on-Constitution of India, 1950, Arts. 19 and 23-Validity of r. 326(d).
Tape Record of Conversations-If legal evidence-Weight of Government-Order of revocation of leave and suspension of Civil Servant-Powerexercised mala fide and on extraneous considerations-High Court-Jurisdiction to interfere under Art. 226 of the Constitution.
HEADNOTE:
The appellant was a civil surgeon in the employment of the State of Punjab having joined the Punjab Civil Medical Service in 1947. In 1956 he was posted to Jull under where he remained 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 passed orders suspending the appellant with immediate effect and revoking his leave as the Government 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 which "A government servant under suspension on a charge of misconduct shall not be ............ permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry 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, he should be retained in service beyond that date till the completion of the departmental enquiry. These orders reached the appellant, according to him, only on June 19, 1961, but they were published in the Punjab Government 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 legality of the orders of suspension, revocation of leave, retention in service after the date of superannuation and institution of the departmental enquiry, on the grounds inter alia, (1) that the rules governing his service did not empower the Governor to pass the impugned orders, and (2) that the impugned orders were passed mala fide by or at the instance 734 of the Chief Minister, who was in-charge of the department of Health and who was personally hostile to him by reason of certain 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 discretion to revoke it even after the officer to whom leave had been sanctioned had proceeded on leave, (ii)The date from which a Government servant is on leave preparatory to retirement cannot be treated as the date of his retirement 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 communicated to the appellant only after the date of his retirement, since he was on leave the said orders were effective from the moment they were issued.
Bachhittar Singh v. State of Punjab, A.I.R. 1963 S.C. 395 and State of Punjab v. Sodhi Sukhdev Singh, [1961] 2 S.C.R.
371, distinguished.
(iv)The appellant had no absolute right to opt for retirement on his attaining 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 way of corroborating the statements 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 bad 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 something which it could not properly take info 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 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 view 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 veste d, 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.
(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 deduced 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, [19241 1 Ch. 483, Earl Fitzwilliam v. Minister of T. & C. Planning, 119511 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 action against the appellant was not to take disciplinary proceedings against him for misconduct which 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 was reached.
CIVIL 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.
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 delivered 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 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 commend737 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 personally 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 unwarranted besides being contrary to what this Court said in State of Bihar v. Abdul Majid(1). 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.
We shall now proceed to deal with the second point (1) [1954] S.C.R. 786 at p. 799.
738 urged before us viz., that the order was passed mala 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 there from, 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 in-charge 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 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 and would not vitiate administrative orders. As Lord Denning said in Lazarus Estates, Ltd. v. Beasley(1) "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 orders may be viewed from two related aspects--of ultra vires (1)[1956] 1. All E.R. 341, 345.
739 pure and simple 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(1) 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 mala 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.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 (1) [1925] A.C. 338.
(2) [1926] 1 Ch. 66, 85.
740 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(1) 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(2) as also Lord Denning's observation Earl Fitzwilliam etc. v. Minister of T. & C. Planning(3).
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. Treating (1) [1915] A.C. 372. (2) [1924] 1 Ch. 483.
(3) [1951] 2 K.B. 284, 307.
741 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 analien 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(1) 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 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(2)). 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 (1) [1904] A.C. 515, 695.
(2) [1885] 29 C.D. 459.
742 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 stating 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 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 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 743 and weighed the 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 jullundur. 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 some expensive articles like Singer Sewing machines etc. to be sent to her gratis. This the appellant did but the refusal to comply with further 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 accommodated 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 cause 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 of the appellant as an expert to instruct the police officers who were conducting the prosecution in what is known as the Karnal 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 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 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 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/64 746 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 Government had already with them the complaint made on October 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, 1961 there appeared an 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 Minister. 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, 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 too 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 Rs. 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 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 mala 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 evidence 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 748 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 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 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 inadmissible. 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 ground for 749 the Court to discount wholly its evidentiary value. But in the present case we 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 undertakes to play the tape-recorder before the respondent within a fortnight from the date of the putting in of the above renderings on a date suitable to both the sides." 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 appellant, 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 750 have been tape-recorded were truly the voices of those persons. 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 respondent on January 11, 1962 in the office of the Registrar of the Court.' This order was given effect to and the State had the re-recorded copies in their possession to verify the authenticity and correctness of the originals. The written statement of the State was filed in February 1962 only after they had thus their own copies of the -records, so that they were in a position to verify (a) tape whether the voice recorded was that of the person whose voice it professed to be ; (b) whether there had been any interpolations or omissions ; and (c) whether there had been any other tampering with the records. In the counter-affidavit filed by the State there was no denial of the genuineness of the tape-records, no assertion that the voices of the persons which were recorded in the tape-records were not those which they purport to be or that any portion of the conversation which would have given a different colour to it had been cut off. We should however add that there was a vague statement regarding the tape record of the talk between the Vigilance Inspector and the appellant with which we shall deal later.
It is in the light of these circumstances and this history of the proceedings that the evidence afforded by the tape recorded talk has to be considered in appreciating the genuineness of the talks recorded and in deciding whether the allegations made by the appellant are substantiated or not.
We shall now take up the allegations in the order in which they appear in the petition and in which we have set them out earlier. The first relates to the incident connected with the operation on the Chief Minister's son Surinder Singh. Now, in regard to this, Surinder has filed an affidavit in which he has denied that there was any operation performed on him either by the appellant or by any other. There is no documentary evidence that the appellant performed the operation which he claims to have performed in the shape of hospital records. The appellant's explanation for the absence of any such 751 record was that the operation was necessitated by the nature of the disease which Surinder had contracted and for this reason the Chief Minister desired the operation to be performed in secret. Accordingly the operation was performed not at Jullundur which is a big city where the Chief Minister and his family were well-known but in a rural dispensary about 50 miles away from his headquarters town.
The main points that were urged by the learned Attorney 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 discharge now.
Mrs. Kairon Is the wound not raw ? Ans. : No.
Mrs. Kairon Can he walk about now ? Ans. : Slightly....................
Mrs. Kairon : There is no other ulcer inside.
Ans. : No, he is quite alright now.
Mrs. Kairon : The thing is that there can develop induration of the wound.
752 Ans. : Is it? Mrs. Kairon : There is no other ulcer inside.
As you said ? Ans. : No. He is quite alright now." From the internal evidence furnished by this tape-record itself it is seen that this talk was on May 1, 1960. Talk no. 6 is said to be slightly earlier in date, being towards the end of April 1960. That too is stated to be after the operation and is a tape-recorded talk on a trunk-telephone between Mrs. Kairon and the appellant. This talk was necessitated, according to the appellant, by the fact that Surinder had left the Circuit house at Jullundur, where he had been directed to stay during convalesence, even before he was completely healed and it was the negligence of the doctor in permitting this to happen that is said to have been one of the causes of the appellant incurring the displeasure of the Chief Minister. There are portions of this record which are also relied on to corroborate the appellant that he perfomed an operation on Surinder and to establish that the denial by Surinder is false :
"Mrs. Kairon : Dr. Sahib, did you test his (Surinder's) urine.? Ans. : Urine is quite alright.
Mrs. Kairon : When was it tested ? Ans. : It was done that day.
Mrs. Kairon : Dr. Sahib, it is 8 days now.
Ans. : We got it tested here when he came." The appellant submitted that the words "that day" which we have emphasized were a reference to the day on which the operation was performed. In the course of this talk (No. 6) Mrs. Kairon made inquiries as to whether her son Surinder was with the appellant and this inquiry was made because she had information from other sources that he had left Jullundur. When the appellant was asked about this he said in the tape-recorded talk :
"You see, he has tried to be clever with me.
Mrs. Kairon : What ? Ans. : This Surinder.
Mrs. Kairon : Oh, you know what Sardar Sahib said.
He said he did not expect this thing from you.
753 Dr. P. Singh : From me ? Mrs. Kairon : Yes.
Dr. P. Singh : Why.
Mrs. Kairon: That he should go away from you.
Dr. P. Singh: No, not from me. From Circuit House.
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 alright now ? Surinder : A little bit of stuff came out of it, sort of blood.
Dr. P. Singh : It would be just a nominal sort of affair? Surinder : Yes please." The above is in so far as regards the operation and next as to Surinder leaving the appellant's care we were referred to the following in the recorded talk :
"Dr. P. Singh : You went away, all on the quiet.Surinder : I had to come here.
754 Dr. P. Singh : Why ? With me your understanding was that you will go only after showing me in the evening.
Surinder : I will come to you in the evening.
Dr. P. Singh : No, you will come today, but yesterday you went away without notice. We came to know of it only when the servant came and reported that the room is all vacant, and that Sardar Sahib has gone, giving a go by." The question is whether this last (No. 11) tape-recorded talk does or does not establish that the appellant's story about his having operated on Surinder was true. In the first place, Surinder, through the affidavit that he made, denies that any operation was performed on him by the appellant or by anyone else, does not deny that the voice recorded in talk no. 11 is his. Besides, Surinder while stating in his affidavit that he was diabetic, admitted that his urine had been examined by the appellant--a matter referred to in talk no. 6 between Mrs. Kairon and the appellant. Of course he did not say in his affidavit that the examination of his urine referred to in this talk, was that referred to by him in his affidavit but that is not very material. Nor has he offered any explanation for his statement in talk no. 11 of "a little bit of the stuff coming out". His version, however, as regards the recorded talks was :
"I heard the tape-records prepared from the tape records recorded by the petitioner. The renderings are not intelligible and clear and are denied." If it was not intelligible, (we need hardly add that we do not agree in this characterization ) how they could be denied is not clear, nor is one able to appreciate as to why the talk should be unintelligible to him if they recorded what he spoke. That is so far as rendering no. 11 is concerned.
But in regard to renderings 2 and 6 which purport to be a record of the talks between the appellant and Mrs. Kairon there is no affidavit from Mrs. Kairon denying the authenticity of her voice or of the talk, as recorded. 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, 755 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 beginning of May 1960. The statement of Surinder, therefore, that he under-went no operation by anyone must obviously be discarded as untrue and no value can be attached to the denial contained in the affidavit that he has filed. If really he had undergone an operation and questions regarding the condition of his wound, the occurrence of discharge etc. are the subject of talks between Mrs. Kairon and the appellant in talks 2 and 6 and between Surinder himself and the appellant in talk 11, it stands to reason, in the absence of any rational or reasonable explanation by Mrs. Kiaron, that the appellant was the person who had performed that operation.
The question that next falls to be considered is whether the operation was entrusted to the appellant by the Chief Minister or not. Apart from the probabilities of the case, the extracts we have made from the tape-recorded talks no. 2 & 6 and the reference to Sardar Saheb would indicate that the Chief Minister was concerned in entrusting the operation to the appellant and the inference is more readily drawn because in the face of the allegations in the affidavit and the tape-recorded talk between the appellant neither Mrs. Kairon, nor the Chief Minister has placed her or his version of the matter before the Court by making any statement on oath. In the circumstances we have no 756 hesitation in holding that it was at the instance of the Chief Minister that the appellant undertook the operation on the chief Minister's son.
It was next said that even assuming the above conclusion were justified, the statement in the tape-recorded talk which indicated the Chief Minister's displeasure at the conduct Of the appellant in permitting his son to leave Jullundur before he was completely cured, was in admissable in evidence for proving what the Chief Minister said to his wife and on that account we should hold that hostility on the part of the Chief Minister owing to this incident was not established. It is true that the statement of Mrs. Kairon as to what the Chief Minister told her would be merely hearsay and would not be admissible in evidence as a statement of the Chief Minister but the tape-recorded talk does show that she herself was greatly displeased with the appellant and it was really to emphasise the displeasure of the family and its head that the Chief Minister's name was brought in. In the circumstances 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 there from 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 on oath. The allegation has, therefore,, to be considered with reference to the documentary evidence on which reliance 757 was placed. They are Exs. B-1 to B-19 which are recommendations by either the Chief Minister, his sons, his brother or his sister introducing certain patients to the appellant and suggesting that they be attended to properly or their requests granted. That anything improper was required to be done by the appellant or anything contrary to the rules was expected to be done by him or was suggested is not borne out by these documents. It is the appellant's submission that of these only two were not complied with-the request contained in B-2 and B-5 but even as regards this there is no such specific assertion on the record, nor is it easy to see why the appellant refused to comply with these requests.
In the circumstances we are unable to hold that this item of misunderstanding is made out. But we must add that as these slips or chits were addressed to the appellant, some by the Chief Minister, others by one or other of his two sons, still others by his brother and one by Ms sister, they do establish that at the dates which they bear the appellant was a great friend of the Chief Minister and enjoyed the confidence of the Chief Minister and the member's of family.
The next item may be considered separately under two heads;
(1) Supply of medicines to the family of the Chief Minister at the request of Mrs. Kairon and others, and (2) the supply of two Singer Sewing machines to Mrs. Kairon. Needless to say that these allegations have, no doubt, been denied by the State, but there is no denial by the only persons who could effectively contradict the appellant. As regards the supply of medicines, the appellant's case is that they were sent by post by registered packets or parcels and in corroboration of his statement he has produced six postal receipts of registered packets or parcels despatched to Sardarni Partap Singh Kairon. These bear dates from 1957 to 1959 and they indicate that between Re. 1/to Rs. 2/was paid as postal charges for their transmission. Surely, something must have been sent in these packets or parcels and received by Mrs. Kairon but there is, on the side of the respondent, no positive statement as to what these packets contained. It therefore, appears to us that it is not possible to discard the appellant'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 758 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 appellant and which is said to be in March 1960, but for our present purpose the date is not very material. We would extract the following from this talk "Mrs. Kairon : The medicines have been received. Appellant : leave the question of arrival of medicines ........................
Mrs. Kalron You sent injections.
Appellant : I had sent you those injections.
Mrs. Kairon Yes they were 4 injections.
Mrs. Kairon : Those tablets have not been received. Appellant : Which tablets.
759 Mrs. Kairon : Those capsules.
Appellant : Those brown.
Mrs. Kairon : Yes.
Appellant : You had not asked for those.
Mrs. Kairon : Well. Does not matter.
Appellant : I will do it now." Lastly, we have talk no. 2 which appellant had with Mrs. Kairon and is stated to have been in May 1960 in which the following passages occur :
"Appellant : The medicines that you had asked for have arrived. When you come you take it.
Mrs. Kairon : You give it to Raghbir Singh (General Manager, Roadways).
Appellant : You know those injections of B Complex that, you had asked for.
Mrs. Kairon : Yes.
Appellant : You had asked for the B Complex injections. Isn't it ? Mrs. Kairon : Yes.
Appellant : I have got those here." In the face of the support afforded by the documentary evidence and the tape-recorded talks, coupled with the absence of any denial or explantion of these matters by the persons who alone could deny them, we feel unable to attach any value to the affidavit of Surinder denying that any medicine's were called for or supplied.
The appellant says that when demands of this type increased he refused further to comply with them, but there is no positive evidence of any demand which he refused to comply with and thus incur the anger or displeasure of the Chief Minister. But notwithstanding the absence of that type of evidence it is clear that until 1959, at least, as is shown by these postal receipts and even till April-May 760 196--as disclosed by the tape-recorded talks, the appellant was on the friendliest terms with the Chief Minister and some explanation has to be forthcoming as to why there was a sudden change of attitude from May 1960 or there abouts and more particularly after January 1961. It is in the light of this circumstance that the evidence afforded by the tape recorded talks regarding the operation on Surinder Kairon and of the article 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 failed to offer any explanation for the label or stencilling at the top referred to in Ex. C-9. Besides, the tape recorded conversation no. 3 between Mrs. Kairon and the appellant in which there is a reference to the colour of the machine that was sent, makes it clear that the appellant's story of his having sent a machine to Mrs. Kairon is true. It is somewhat surprising that though Ex. C-7 to C-10 were annexures to the writ petition and the respondents had copies of the tape-recorded talks with them before they filed their statements, they contented themselves with filing these affidavits of Sri Pahwa and Om Prakash and Mrs. Sodhi and abstained from letting the court know what Mrs. Kairon had to say on the matter. This Sewing Machine incident was in July 1959 and it shows that up to that date there was com761 plete friendliness between the Chief Minister and the appellant. The appellant's further allegation that Mrs. Kairon or the other members of the Chief Minister's family demanded of him the supply of other costly articles and that his refusal to comply with them angered the Chief Minister, must be discarded as an embellishment for which there is no support in the evidence placed before the court.
The next item of the source of hostility alleged by the appellant is that be sent out of his
