Case: E.P. Royappa Vs. State of Tamil Nadu &amp; Another

The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up - these considerations are wholly irrelevant in judicial approach - but because otherwise, functioning effectively would become difficult in a democracy. It is from this stand-point that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.98. Now extensive arguments were addressed before us by counsel on both sides and we were taken through a mass of documents, papers and official notings on this part of the case but we are afraid it is not possible for us to say that the onus of establishing mala fides against the second respondent heavy as it is, has been discharged by the petitioner. The allegations of mala fides in the judgment of the learned Chief Justice and we do not think it will serve any useful purpose for us to discuss the merits of those allegations once again in this judgment, as we are substantially in agreement with what the learned Chief Justice has said. But we cannot help mentioning that there are certain disturbing features which cause us anxiety. We may take by example the imputation in regard to the Coom River Project. It seems that in or about the beginning of February 1970 the second respondent asked the Director of Vigilance to look into the affairs relating to Coom Improvement Project as he apprehended that there were certain malpractices in the execution of that scheme. Whether this was done by the second respondent on his own initiative or at the instance of the petitioner is immaterial and we need not go into that controversy. The Director of Vigilance, as his subsequent letter dated 25th February, 1970 shows, informed the second respondent that without a discreet inquiry it would not be possible to allay or confirm the apprehensions with any degree of credibility since the head of the concerned engineering department was personally involved in the execution of the scheme and he accordingly by that letter pointed out to the petitioner that he needed authorisation to embark on the inquiry and Government order in that behalf should therefore be obtained and communicated to him. The petitioner made an endorsement on this letter on the very next day with a remark that the Public (Secret / Confidential) Department should deal with it immediately. The Public (Secret / Confidential) Department prepared a note at the foot of the letter and submitted it for circulation to the Minister for Works and the second respondent for orders whether the Director of Vigilance should be requested to make a discreet inquiry and send his report. The endorsement made below the note shows that it was submitted for circulation on 3rd March, 1970. It appears however, that this note remained unattended until the middle of September 1970. On 12th September, 1970 the Minister for Works made on endorsement that the Director of Vigilance may make a discreet inquiry and this endorsement was approved by the second respondent on 20th September, 1970. The file containing the note together with the endorsements of the Minister for works and the second respondent was thereafter placed before the petitioner along with a draft of the memorandum of be addressed by the petitioner to the Director of Vigilance.99. It is common ground that no memorandum in terms of this draft was issued by the petitioner to the Director of Vigilance. The case of the petitioner was that he did not do so because the second respondent subsequently ordered that no inquiry need be made in this matter. This position was disputed by the second respondent who stated that to the best of his recollection he did not make any such order canceling the inquiry. That is a matter of controversy between the parties and as pointed out above it does not fall within our province to investigate it. But the fact remains, and that cannot be disputed, that no inquiry thereafter took place in the affairs of the Coom Improvement Scheme. It is a little interesting to note that Sabanayagam addressed a letter dated 31st July, 1971 to the petitioner stating that though the Personal Assistant to the Chief Secretary had been reminded to send back the file relating to this matter, it had not been received and the petitioner should arrange to send it back, if it was with him. The petitioner immediately replied to this letter on 8th August, 1971 pointing out that he distinctly remembered that the second respondent had subsequently ordered that no inquiry need be made in this matter and the file was not with him. It is significant that though the petitioner stated categorically that the second respondent had subsequently ordered that no inquiry need be made, Sabanayagam did not write back challenging the correctness of this statement. The file pertaining to this matter was all throughout in the possession of the Government and even after the petitioner pointed out that it was not with him, curiously enough it could not be traced until the filing of the petition. In fact, the absence of the file could not have stood in the way of ordering an inquiry. These and a few other circumstances do create suspicion but suspicion cannot take the place of proof and, as pointed out above, proof needed here is high degree of proof. We cannot say that evidence generating judicial certitude in upholding the plea of mala fides has been placed before us in the present case. We must, therefore, reject this contention of the petitioner as well.100.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. It thus appears that the Chief Ministers Note as well as the draft order stated that the petitioner was promoted and posted as Chief Secretary. But the Gazettee Notification dated 13 November, 1969 was that the petitioner was "promoted and posted to act as Chief Secretary to the Government vice C.A. Ramakrishnan, who has been granted refused leave with effect from 14 November, 1969". The Gazette notification prevails over the draftwho was on refused leave being a member of the Indian Civil Service, was entitled under Article 314 of the Constitution to conditions of service as respects remuneration, leave and pension to which members of the Civil Service were entitled immediately before the commencement of the Constitution. Fundamental Rule 13 (d) as it stood prior to the commencement of the Constitution provided for the retention of lien on a permanent post while on leave without making any exception with regard to refused leave. Fundamental Rule 86 as it stood prior to the commencement of the Constitution did not contain any provision to the effect that the grant of refused leave would not amount to extension of service. The Government of India, Finance Department Notification No. 520-CER dated 31 May, 1922 contained the Government decision that the grant of leave under Fundamental Rule 86 automatically carried with it the extension required and no formal sanction to the extension was necessary. The effect of Fundamental Rules 86 and 13 (d) as they stood prior to the commencement of the Constitution is that an Officer does not continue on duty but draws leave salary by virtue of a privilege granted to him. There is no formal extension of service. He retains lien on his post. The post cannot be substantively filled till he actually retires from service.15. The Fundamental Rules of the Madras Government corrected upto 30 June, 1966 issued by the Finance Department, 2nd Ed. 1966 at pages 133-134 contain a note appended to Fundamental Rule 56 of Tamil Nadu State Government. In that note an exception in respect of Indian Civil Service Officers is created by providing that in the case of an Officer of the former Secretary of State Service the grant of such leave shall be treated as sanctioning as extension of service upto the date on which the leave expires. Therefore, Ramakrishnan held lien on his post until 14 March, 1970.16. The petitioner in the note for circulation dated 14/16 November, 1970 prepared by the Joint Secretary, Finance Department, noted that the date of retirement of Ramakrishnan would take effect from the date of expiry of the refused leave namely, 14 March, 1970. That is why the petitioner asked to be confirmed as Chief Secretary with effect from 14 March, 1970. The petitioner was, however, not confirmed in the post. Therefore, the petitioner was not substantively appointed the post of Chief Secretary. The petitioners substantive appointment was in the selection grade of Rs. 1800-2000. The petitioner during the period of refused leave of Ramakrishnan acted as Chief Secretary by way of a temporary arrangement. The petitioner did not have any right to hold the post of Chieftherefore, follows that the strength and composition of the cadre shall be determined by regulations made by the Central Government in consultation with the State Government. The State Government alone cannot alter the strength and composition of the cadre.18. The aforementioned second proviso to rule 4 (2) of the Cadre Rules does not confer any power on the State Government to alter the strength and composition of the cadre. If such power were conferred on the State examination of the strength and composition at the interval of every three years by the Central Government in consultation with the State Government would be nullified. The meaning of the second proviso to Rs. 4 (2) is that the State Government may add for a period mentioned there to the cadre one or more posts carrying duties and responsibilities of the like nature of a cadre posts. The posts so added do not become cadre posts. There temporary posts do not increase the strength of the Cadre. The addition of the post of Deputy Chairman, Planning Commission or Officer on Special Duty to the Indian Administrative Service Cadre of Tamil Nadu State is not permissible because that would result in altering the strength and composition of the Cadre. The State has no such power within the second proviso to Rule 4 (2) of the Cadrethe post of Deputy Chairman, Planning Commission, carried a pay of Rs. 3500/- per month when the petitioner was appointed as Deputy Chairman of the Planning Commission. The upgrading an the downgrading of the post of Deputy Chairman, Planning Commission alleged by the petitioner is not correct. The post was not upgraded or downgraded. The incumbent of the post carried a higher or a lower salary according to the salary enjoyed by the incumbent at the time of the appointment.The petitioner had worked as Deputy Commissioner of Commercial Taxes and subsequently as Secretary to Government Revenue Department dealing with Commercial Taxes also. The petitioner was also Commissioner, Board of Revenue in charge of Commercial Taxes. In view of the wide experience of the petitioner in the field of commercial taxes the Government decided to post him as Officer on Special Duty. This was neither unjust nor unfair nor mala fide. There was no reduction in rank. The petitioners status as well as pay was in conformity with the Rules.35. The petitioner could not claim that till retirement he must continue to act in the post of the Chief Secretary. The order of transfer were passed in the administrative exigencies.36. The member of Indian Administrative Service and particularly those who are in the high posts are described as the steel framework of the Administration. The smooth and sound administration of the country depends on the sense of security and stability of the officers. These officers should not be made to feel that their position or posts are precarious with the change of Government. Their service must be completely free from the fear or threat of arbitrary act of the authorities. Similarly, the members of the Service should keep themselves isolated from turmoils of political parties. It is this sense of disinterestedness and detached devotion to duty which has to be recognised and rewarded.The Minister for Co-operation denied that he asked the petitioner to modify any note. The Chief Minister denied that he ever asked for and modification in the note. The Chief Minister further alleges in the affidavits that there is no note written by the petitioner suggesting the launching of prosecution against Mudaliar. Both the Chief Minister and the Minister for Co-operation state in their affidavit that action has been taken and is being pursued against all the persons concerned relating to the affairs of the Federation. The petitioners suggestion was accepted. There is no occasion for vindictiveness.42. The petitioners allegation that the Chief Minister expressed annoyance at the petitioners note against Mudaliar for causing hazards by discharge of effluent from the distillery is belied by the action taken by the Government. The petitioner in his note suggested a joint inspection and satisfactory arrangement for treatment of the effluent in accordance with the recommendation of the Water and Sewage Advisory Committee. The petitioners proposal was accepted. The petitioners also recommended implementation of a plant scheme on pain of cancellation of licence. Industrial alcohol is manufactured in the distillery. This product is required by the cordite factory of the Defence Department and for pharmaceutical, medicinal and industrial products. The petitioners recommendation to close the distillery would not only have unemployment of a large section but created also lose of important products. The way the affairs of the distillery were handled according to the suggestion and recommendation of the petitioner does not disclose any evidence of mala fide on the part of the Government.These facts in relation to Vaithialingam indicates that the petitioner was not only a party to all the decisions but also he was responsible for the decision taken by the Government. There is no ground whatever for attributing bad faith or improper motive to the Government against the petitioner.The affidavit evidence indicates that the petitioner carried out normal duties and exercised care and caution at the time of the election. That is expected of all officers. It is also expected that officers will maintain a balanced and firm hand in regard administration. Civil servants are expected to advise Ministers in the context of files and rules. The Government and Ministers are also expected to maintain a balanced and impersonal attitude in regard to law and order situation as well as advice given by civil servants. In the present case, it appears that the petitioner gave advice in course of duty. The Government practically in all cases accepted the advice of the petitioner. There does not appear any instance of acrimony or dis agreement between the Government and the petitioner. There are no records to suggest that the petitioner advised one way and the Government acted in an opposite manner.70. The events alleged at the time of the elections are in aid of the petitioners contension that his dealing of the law and order situation was so firm that the Chief Minister and other members of his party became alienated. The petitioner suggested that the Chief Minister and the members of his party were responsible for introducing violence and intimidation. The further suggestion of the petitioner is that the petitioner exposed the activities of the D.M.K. Party, Complaints against the D.M.K. Party were like complaints against other political parties. The affidavit evidence indicates that the law and order situation was kept under normal control. All the officers of the State including the police service discharged their duty in the best interest of administration as also in public interest. The petitioner did not achive anything extraordinary. As the Chief Secretary it was the duty of the petitioner went out of control. The Chief Minister and the members of his party cannot be said on the affidavit evidence to have committed acts of violence or intimidation. The entire affidavit evidence establishes beyond any measure of doubt that the petitioners allegations imputing mala fides against the Chief Minister are baseless. The petitioners allegations were in aid of suggesting vindictiveness and vengeance on part of the Chief Minister. Facts and circumstances repel any such insinuation andmost significant feature in the allegations of mala fides is that when on 7 April, 1971 the petitioner was appointed to act as Deputy Chairman, Planning and he went on leave he did not at any stage anywhere that the order was made mala fide. The first letter where the petitioner alleged mala fides is dated 7 June, 1972. The allegation of mala fides are not contemporaneous but after-thoughts at a distance of one year. That was when the petitioner returned from leave after one year and he was appointed to the post of Deputy Chairman, Planning Commission. Even in that letter the only allegation about mala fide is that the petitioner took strong steps about maintenance of law and order at the time of the elections in 1971 against the views of the Chief Minister and the Ministers. It, therefore, follows that until the petition was filed in the month of July, 1972 the respondents of mala fide made in the petition. Therefore, when the impugned order was made on 26/27 June, 1972 it is manifest that the Government did not make the order out of any improper motive or any indecent haste or out of any ingenious inspiration to get rid of the petitioner. Another noticeable feature in the allegations of mala fides is that the petitioner all throughout describes himself as a person who acted without any fear or favour and enjoyed the reputation of being a strict and honest officer, and, therefore, the Government contrived to remove the petitioner from the post of Chief Secretary. Honest and fearless cadre officers are not unknown and rare as the petitioner suggests. Nor are intrepid officers in cadre posts thrown out of office because of expression of views about law and order situation. In the petition the petitioner has ascribed to the Chief Minister, the Governor and a few other Ministers certain statements having been made by them. The statements are quoted to be words of mouth of the Chief Minister or the Governor or the Ministers. The petitioner has nowhere made contemporaneous entry or record of such utterances. It is difficult to believe that the petitioner would remember identical words in long sequence and set them out with exactitude in the petition. These allegations are made in the petition for the purpose of giving semblance of truth and lending colour to chronicle.