Supreme Court of India

S. Pratap Singh vs The State Of Punjab on 2 September, 1963

Equivalent citations: 1964 AIR 72, 1964 SCR (4) 733

Author:
N. Rajagopala Ayyangar

Bench:
N. Rajagopala Ayyangar
,
Raghubar Dayal
,
J.R. Mudholkar

PETITIONER:
S. PRATAP SINGH

Vs.

RESPONDENT:
THE STATE OF PUNJAB

DATE OF JUDGMENT:
02/09/1963

BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
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 retirement-
When 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-Power- exercised 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 Jullunder 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
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 retire-
ment 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 ofthe 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
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 correct-
ness 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 inthe Government. The
only question which could be consideredby the court is
whether the authority vested with the power has paid
attention to or taken into account circumstances, eventsor ma
tters
wholly extraneous to the purpose for which the powerwas veste
d,
or whether the proceedings have been initiated malafide
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 ac-
tion 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 Consti-
tution 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.
JUDGMENT:

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 unneces-
sary 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 commend-
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 interpre-
tation 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.
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 therefrom, 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 Govern-
ment. 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 incharge of the
Health Department in which the appellant was employed and it
was' therefore the Chief Minister as the Minister in-charge
of that portfolio who initiated these proceedings though the
formal orders of the Ministry were issued by the Secretaries
etc. of the Department in the name of the Governor. For the
purposes of the present controversy the functionary who took
action and on whose instructions the action was taken
against the appellant was undoubtedly the Chief Minister and
if that functionary was actuated by mala fides in taking
that action it is clear that such action would be vitiated.
In this context it is necessary to add that though the
learned Attorney-General at first hinted that he would raise
a legal contention, that even if mala fides were established
against the Chief Minister still the impugned orders could
not be set aside, he did not further pursue the matter, but
proceeded, if we may say so rightly, to persuade us that
mala fides was not 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.
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.
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. Treat-
(1) [1915] A.C. 372. (2) [1924] 1 Ch. 483.

(3) [1951] 2 K.B. 284, 307.
ing 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 theofficer
would be mala fide and a colourable exercise ofthat
power, and would therefore be struck down by theCourts.
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.
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. Ifthe act is in excess of the power granted or
is an abuseor misuse of power, the matter is capable of
interferenceand 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 mo-
tives 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
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 ap-

pellant did but the refusal to comply with
fur-
ther 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
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 ap-
pellant 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
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 to he remembered he was then on leave)
would come to Jullundur for clarifying certain points in
relation to an inquiry which had been ordered by the Punjab
Government. It is stated that this was in connection with
the complaint regarding the improper receipt of 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
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 ofthe allegations
found in the newspaper. It is the case ofthe appellant
that these matters occasioned the hostility of the Chief
Minister and that the impugned orders passedin June 1961
were passed not bona fide for the purposeof conducting
an inquiry into his conduct but to harassand 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 cha-
racter 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 evidance
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
same on oath. In the present case there were serious al-
legations 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
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 wece 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 petitionThe applicant, therefore,
prays that thepetitioner may be ordered to
place on recordthe 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 ap-
pellant, so that a correct copy of the tape-records was
available to the respondent-State before filing the written
statement. In the applications made by the respondent to
the Court for directions regarding the inspection of the
tape-records produced by the appellant, and seeking the
facility for re-recording, it was explicitly stated that
this was for the purpose of the State satisfying itself
whether the voices of the persons whose talks were purported
to
have been tape-recorded were truly the voices of those per-
sons. The Court passed an order on January 5, 1962
directing the appellant to file the original tape-records
into Court to be sealed in the presence of both the parties
and kept in custody of the Registrar of the Court, but this
was to be after the records were played before the res-
pondent on January 11, 1962 in the office of the Registrar
of the Court.' This order was given 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 taperecord 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
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 per-
formed 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.
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.
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.
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
yesterady 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 com-
ing out". His version, however, as regards the recorded
talks was :

"I heard the tape-records prepared from the
taperecords 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 characterisation) 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,
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
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 inadmissable
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 therefrom that an operation was
performed by the appellant sometimes towards the end of
April 1960 very much turn on these factors. In making this
statement regarding the date we have in mind the reference
in talk no. 2 to "tomorrow" as being the 2nd of May.
The next allegation relates to the requests made by the
Chief Minister himself and the members of his family for
undue favours to be shown to certain patients who were
recommended for medical certificates or for special
treatment by the appellant at the hospital. This allegation
was denied by the State, but as stated earlier, the denial
has little force because the only persons who were in a
position to contradict the appellant have not come forward
to state anything on oath. The allegation has, therefore,,
to be considered with reference to the documentary evidence
on which reliance
was placed. They are Exs. B-1 to B-19 which are recommen-
dations 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
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.
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 evi-
dence 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 andthus incur the anger or displeasure of the Chief
Minister. But notwithstanding the absence of that type
of evidenceit is clear that until 1959, at least, as is
shown by thesepostal receipts and even till April-May
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 taperecorded
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 com-
plete friendliness between the Chief Minister and the ap-
pellant. The appellant's further allegation that Mrs. Kai-
ron 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 house Kirpa Singh, the
manager of an automobile concern of the Chief Minister's
son-Surinder-in or about March-April 1960 after having
permitted him to stay there for about 7 months. Surinder
has filed an affidavit in which he has denied his ownership
of the automobile concern and also that Kirpa Singh was
provided with board and lodging by the appellant at the
instance of his father. Kirpa Singh also made an affidavit
to the same effect. Two matters however, stand out
prominently. The first is that it cannot be doubted that
Kirpa Singh is a great friend both of the Chief Minister and
his son. Tape-record no. 15 which purports to record the
talk between Kirpa Singh and the appellant brings this out.
It was sought to discount the evidentiary value of this talk
by the circumstance that the appellant had brought about
this talk designedly in order to tape-record the con-
versation. We do not, however, agree that it has any such
effect. The reality of that talk and the correctness of the
tape-recording is not denied by Kirpa Singh in the affidavit
be filed and if he really spoke the words which that record
shows he did the facts above stated are made out. That
Kirpa Singh was the manager of an automobile concern in
jullunder is not in dispute but both Surinder as well as
Kirpa Singh, in their affidavits, have studiously refrained
from stating who the owner of that concern was beyond
stating that Surinder is not the owner. We consider this
averment most disingenuous and least frank. That Kirpa
Singh was afforded board and lodging at the appellant's
house is also admitted. It was not suggested that Kirpa
Singh was a friend of the appellant otherwise than as a
friendof the Chief Minister and his son. and this tape-
record 15 makes clear. It does not, therefore, stand to
reason that the appellant would have undertaken the cost and
incovenience of providing Kirpa Singh with board and
49-2 S. C. India/64
lodging except to oblige the Chief Minister and his son (2)
It is also a fact that Kirpa Singh moved out of the
appellant's place at the end of March 1960 having stayed
there from September 1959 (vide Ex. D-1). The question
immediately arises whether this was because of the
disinclination on the part of the appellant to continue to
retain him in his house. Having regard to the other cir-
cumtances which have already been mentioned, of the
undercurrent of hostility borne by the Chief Minister which
started roundabout this time, we are inclined to accept as
true the appellant's version that he sent Kirpa Singh out of
his house in preference to the story of Kirpa Singh that he
went out of his own accord. If the Chief Minister was
obliged by the appellant providing board and lodging to
Kirpa Singh, it would not be a violent inference to draw
that the Chief Minister was angry with the appellant for
having sent Kirpa Singh out.

Some of the other matters set out as those which led to the
hostility of the Chief Minister are also made out, such as
for instance that the appellant's services were utilised by
the Chief Minister in connection with the Karnal murder case
(vide talk no. 7 with the Chief Minister himself) but as we
consider them to be of minor significance, we do not propose
to deal with them in any detail, particularly as it would be
sufficient to proceed on the basis of the items earlier
discussed.

Next we have the fact that notwithstanding that on the 29th
of October 1960 there was some complaint received by the
department regarding his having improperly taken Rs. 16 from
a patient in July 1960, he was granted leave preparatory to
retirement as and from December 18, 1960. In other words,
the Government had no idea at that date that charges should
be formulated against the appellant and that his retirement
should be postponed for completing such an inquiry. We have
then the circumstance that in all the earlier Confidential
Reports relating to the appellant there was nothing wrong
found with him and his conduct and character were not the
subject of any adverse comment. It was only subsequently,
long after the close of the year 1960, that an adverse
remark was made against the appellant in respect of the year
1-4-59 to 31-3-60 and this was communicated to him only late
in February 1961. The appellant
complains that this was really an after-thought and was
brought in long after that year was over in order to afford
some justification for the charges that were eventually made
against him. What we have stated earlier regarding the
unfriendly feelings which developed with the Chief Minister
from about April-May, 1960 onwards seems to lend some
support to this suggestion.

We have next the circumstance connected with the article in
Blitz which appeared in its issue dated January 15, 1961.
That seems to be the starting point of the action taken
against the appellant, for on January 13, 1961 the Vigilance
Officer sent a communication to the appellant to offer his
explanation in regard to certain charges which were then the
subject of inquiry. In the order dated the 3rd June, 1961
by which the appellant was placed under suspension there is
reference to three inquiries-one dated October 29, 1960,
another of January 11, 1961 and the third dated April 17,
1961. The dates apparently are a reference to the dates of
the several complaints. The order refers to investigations
made by the Vigilance Department into certain complaints
against the appellant but though the bona fides of these in-
quiries as well as the bona fides of the action taken under
the impugned order were questioned the report of the Vigi-
lance Inspector was not placed before the Court to enable it
to judge what exactly the complaints were and whether they
were the same as the charges listed in the charge-sheet
against the appellant. The above has to be judged in the
context of the feature that there is a tape-recorded
conversation which the appellant had with the Vigilance
Inspector (tape-record no. 16) in the course of which the
Inspector appears to suggest that he himself did not believe
in the reality of the complaints. In the counter affidavit
filed by the State it was stated that the Vigilance
Inspector "who has been made to hear a copy of the tape-
records in question has reported that the tape-records are
unintelligible and as such it is not possible to compare the
renderings with it. He has therefore reported that the
talk, as disclosed in the rendering took place between him
and the petitioner but that the rendering appeared to have
been twisted by the petitioner according to his own liking".
The Vigilance Inspector himself made no affidavit nor was
there any denial even by the State that the voice recorded
as that of the Vigilance
Inspector was really his. The tape-recorded talks have been
translated-the originals having been heard by the State
officials as well as by the Inspector and we do not see any
Justification for the complaint that they were
unintelligible. There is, therefore, no reason why it was
not possible to say (a) that there was no talk, (b) if there
was, what exactly was its purport, and (c) where and in what
respects the tape-recording departed from the truth either
by way of addition or omission. The talk, as recorded, as
already stated would appear to suggest that the Vigilance
Inspector did not believe in the truth of the complaint.
That, however, might not be very relevant for deciding
whether the complaint was true or false but in the face of
that recorded conversation is was certainly necessary for
the State to produce the Inspector's report for countering
the case of the appellant that the charges were invented for
the purpose of enabling the State to harass and humiliate
him.

Lastly, it is rather curious that some of the charges which
are to be the subject of enquiry relate to a period long
anterior to June 1961. For instance, charge 2(b) is
concerned with an illegal demand and receipt of sum of Rs.
100/from a patient who came to the hospital on March 13,
1957. Similarly, there are others which had been made ear-
lier but had been dropped or their falsity had been admitted
on earlier occasions but were stated to have been revived
for the purpose of Justifying this inquiry. In the view we
entertain that the action against the appellant was taken
because of the matters we have held proved and because of
the charges made against the Chief Minister in the article
in the Blitz it is not necessary to discuss minutely as to
whether the charges could be true or were merely invented.
The facts establish that up to March-April 1960 the ap-
pellant was on the best terms with the Chief Minister and
the members of his family. He was going out of his way to
oblige the Chief Minister and do his bidding, though as an
officer of the position and status of the appellant this was
hardly conduct which should properly be expected of him.
Possibly , his being kept at Jullunder without transfer for
four years was because of this failing on his part. From
April 1960 onwards we find that there is a change in the
attitude of the Chief Minister. The operation on Surinder
and the incidents connected with it and the sending out of
Kirpa
Singh relate to this period. This apparently led to the
order for his transfer from Jullunder to Amritsar. Having
fallen from grace, the appellant did not apparently consider
it safe to continue in service and hence applied for leave
preparatory to retirement and this was granted. Immediately
he got to know that he had obtained this leave he was
apparently emboldened to make public the improper acts which
he himself had done for pleasing the Chief Minister and
curry his favour and the article in the Blitz was obviously
inspired by him. When this came to the notice of the Chief
Minister in the middle of January 1961 stern action
followed-first the Vigilance Inspector's communication of
the 13th January followed by the adverse report against the

-appellant for 1960 in February 1961 and the further charges
against him in April 1961 which led to the passing of the
impugned orders. In the circumstances we are satisfied that
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 by the allegations that he had
made in the article which appeared in the Blitz in its issue
dated January 15, 1961 followed by the communication to the
same newspapers by the appellant's wife, in which these
allegations were affirmed and in large part we have found to
be true. We therefore hold that the impunged orders were
vitiated by mala fides, in that they were motivated by an
improper purpose which was outside that for which the power
or discretion was conferred on Government and the said
orders should therefore be set aside.

We therefore allow the appeal and set aside the order dated
June 3, 1961 revoking the leave granted and placing the
appellant under suspension and the order dated June 29, 1961
directing an inquiry into the charges against him.
As the appellant has failed to make out the other point
about the orders being contrary to the Service Rules we di-
rect that there shall be no order as to costs, here and in
the High Court.

RAGHUBAR DAYAL J.-This appeal, on a certificate granted by
the High Court of Punjab, is directed against
its order dismissing the appellant's petition under
Art. 226

of the Constitution praying for quashing, by a writ of cer-
tiorari or other suitable directions, the orders of the
Punjab Government (1) suspending him; (ii) revoking his
leave; (iii) compelling him to continue in service after he
had attained the age of superannuation, and (iv) ordering a
departmental enquiry against him.

The appellant, Sardar Partap Singh, Joined the Punjab Civil
Medical Service, Class 1, in 1947. He joined the service as
a direct recruit on August 21, 1947. His previous service
in the Indian Medical Service from 1934 to 1939, in the
Punjab Civil Medical Service from April 1940 to June 1941
and in the Indian Military Service in temporary rank till
about the end of 1945, has no bearing on the terms of his
service as a member of the Punjab Civil Medical Service,
Class 1.

The appellant reached the Selection Grade of the Civil
Medical Service, Class I, in January 1955 and was trans-
ferred to Jullunder as Civil Surgeon in April 1956. He
remained there till he proceeded on leave preparatory to
retirement sometime in December 1960. His leave was san-
ctioned on December 18, 1960, and was notified in the Punjab
Gazette dated January 27, 1961.

On June 3, 1961, the Governor of Punjab ordered the
suspension of the appellant with immediate effect as the
Government had decided that a departmental enquiry be
instituted against him under r. 7 of the Punjab Civil Ser-
vices (Punishment and Appeal) Rules, 1952. The Governor
further passed an order under r. 3.26(d) of the Punjab Civil
Services Rules. These rules were issued under the proviso
to
Art. 309
of the Constitution and came into force from
April 1, 1953. They have been referred to as the 1959 rules
in the judgment of the High Court and at the hearing as they
were amended from time to time and were re-printed in 1959.
We shall also refer to them as the 1959 rules. The
Governor's order under r. 3.26(d) of these rules was that in
view of the appellant's reaching the age of superannuation
on June 16, 1961 he be retained in service beyond that date
till the completion of the departmental enquiry.
The orders of the Governor were communicated to the
Director, Health Services, Punjab, by the Secretary to the
Government in the Medical and Health Department by his
letter Annexure J dated June 3, 1961. The Director, Health
Services, communicated these orders to the appellant by a
letter, Annexure 1, dated June 3, despatched under postal
certificate. He further sent a copy of that letter and its
enclosures by registered post to the appellant on June 5,
1961. The registered cover was further marked 'express
delivery'. Copies of this letter were sent to the then
Civil Surgeon, Jullunder, and the Accountant General,
Punjab, for information.

On June 10, 1961, notifications about the Governor's placing
the appellant under suspension and fixing his headquarters
at Chandigarh and about his revoking, with effect from June
3, the leave preparatory to retirement which had been
sanctioned to him and retaining him in service until the
enquiry into the charges against him be concluded and a I
final order passed, were published in the Punjab Government
Gazette Extraordinary dated June 10, 1961. The Director,
Health Services, Punjab, forwarded to the appellant, with
his letter dated 3/11th of July 1961, a memorandum dated
June 29, 1961, statement of charges and statement of
allegations which he had received from the Secretary to
Government, Punjab, Vigilance Department, for the
appellant's submitting' such explanation ,is he might
desire. This letter purported to be with reference to
enquiries nos. 70, 3 and 27 dated October 29, 1960, January
11, 1961 and April 17, 1961 respectively against the
appellant.

The appellant challenged, by his writ petition, 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 various grounds. The
competency of the Governor to make the orders was
questioned. It was alleged that unjustified personal grie-
vances arose between the appellant and Sardar Partap Singh
Kairon, Chief Minister of Punjab, in or about 1960, that the
impugned orders were passed mala fide in the exercise of
power, if any, vested in the respondent, the State of Punjab
in the Ministry of Health, that this was an abuse of power
and was intended to feed the grudge of the Chief Minister
against him.
The respondent State refuted the contention that the
impugned orders were passed mala fide on account of the
alleged grievances of the Chief Minister and stated that the
Government was competent under rules governing the services
of the appellant to pass the impugned orders and that the
appellant's allegations had nothing to do with the orders
suspending him and revoking his leave preparatory to
retirement.

The High Court agreed with the contention for the respondent
and dismissed the appellant's petition. On the appellant's
application, it granted the necessary certificate under
Art.
133(1)(c)
of the Constitution.

The appellant has questioned the correctness of the impugned
orders, broadly speaking, on two grounds. One is that the
rules governing his service did not empower the Governor to
pass the impugned orders. The second is that the impugned
orders were passed mala fide as the Chief Minister, who was
in charge of the department of Health, bore ill-will towards
him.

The first contention has been urged before us in various
ways and we deal with the more salient and important aspects
urged to support the contention that the impugned orders
could not have been passed by the Governor in view of the
various rules.

It is contended that leave, once sanctioned, cannot be
revoked after the officer has proceeded on leave. He can
only be recalled to duty. The appellant was not recalled to
duty as he was not posted to any post of a civil surgeon.
Rule 8.15 of the 1959 rules reads :

"Leave cannot be claimed as of right. When
the exigencies of the public services so
require, discretion to refuse or revoke leave
of any description is reserved to the
authority empowered to grant it.

It follows therefore that the authority granting leave has
the discretion to revoke it. There is no restriction on the
power of revocation with respect to the time when it is to
be exercised. It can be exercised before the officer to
whom leave was granted proceeds on leave. It can also be
revoked after he has proceeded on leave. Revocation of
leave simply means cancelling the leave granted.
The exigency necessiating the revocation of leave may arise
after the officer has proceeded on leave. Rule 8.3 has no
bearing on the question as it provides that the rules
following it govern the procedure for making applications
for leave and for granting leave in India. It deals with
the procedure and not with the right of the officer to leave
or with the power of the necessary authority to sanction or
refuse leave or revoke leave. Rule 8.42 deals with matters
incidental to the recall from leave and in no way affects
the discretion of the authority to revoke leave. In fact,
recall to duty must follow the revocation of the leave with
respect to the period not availed of till then.
The next contention is that when a Government servant
proceeds on leave preparatory to retirement, he ceases to
hold office and to be in the employment of Government and
that in fact he practically retires on the date he avails of
the leave and consequently no question of his suspension can
arise. This contention, again, has no force. A Government
servant is in service till his service terminates and the
service can terminate only by dismissal, removal or
retirement. The date from which a Government servant is on
leave preparatory to retirement cannot be treated as the
date of his retirement from service.

It is also urged that a Government servant on leave
preparatory to retirement cannot be suspended as suspension
means a person's ceasing to work on the post he holds and
the public servant on such leave holds no office or post and
therefore he cannot be effectively suspended. Suspension of
a Government servant, during the course of his service,
simply means that no work is to be taken from him during the
period of suspension. The Government servant does not work
on a post during the period of his suspension. If he is
actually discharging the duty of a certain office prior to
suspension, the order of suspension would mean that he would
cease to work on and discharge the duties of that post. If
at that time he is not working on any post but is on leave,
no question of Ms actually ceasing to work or giving up the
discharge of duty arises, but that does not mean that the
order of suspension would be ineffective. The Government
servant, during suspension or on leave, holds a lien on his
permanent post in view of r. 3.13 unless his lien is
suspended or is transferred under the appropriate
rule and so has a title to hold that post when under sus-
pension or on leave.

We may refer to the case reported as
Khem Chand v. Union of
India
(1) wherein the rule that a Government servant be
deemed to be on suspension during the period between the
date of dismissal and the date of its being set aside, was
held valid. Suspension during such period is analogous to
suspension during the period of leave after
revocation of leave for that period.

Another contention is that the order revoking the leave must
precede the order of suspension, and as the order of
suspension was before the revocation of his leave it is bad.
We do not agree with this contention. Notifications about
the suspension and revocation of leave from June 3, 1961,
were issued on June 3, 1961. The order of suspension bears
an earlier number than the order about the revocation of
leave. The order in which the two orders were issued does
not affect in substance the validity of the two orders so
long as the Governor had the power to suspend the appellant
and revoke his leave. Orders may be issued in any sequence.
The next contention is that these orders of June 3 were
actually communicated to the appellant after the date of his
retirement and is therefore ineffective. The appellant's
date of birth is June 16, 1906. The order of suspension
reached the appellant, according to his statement, on June
19, 1961, though it was despatched by the Director, Health
Services, Punjab, on June 3, 1961. The envelope containing
the letter was addressed to the appellant by his Kanpur
address which he appeared to have furnished to the office.
The appellant was apparently not at Kanpur when the letter
reached him and the letter took unduly long on being
redircted to the address where it was delivered to the
appellant. There is not sufficient material on the record
to show when it was redirected and what caused this delay.
The Director, Health Services, not only addressed an
ordinary cover under postal certificate to the appellant but
also followed it up by a registered letter on June 5. The
Government, not having received an acknowledgement of the
appellant with respect to the receipt of the orders of
suspension etc., published the orders in the Punjab
[1963] Supp. I S.C.R. 229.
Government Gazette extraordinary dated June 10. Ordinarly,
the notification about these orders would have been
published in the Gazette in due course. They were published
in the Gazette Extraordinary as the Government it appears
from the written statement, had the impression that the
appellant was avoiding the receipt of the letter addressed
to him. There was a reason for their anxiety to see that
the orders could be made known to the appellant as he was
due to retire from June 16, 1961. The newspapers also,
according to the appellant's own petition, published in
their issues of June 15 about the notification concerning
the respondent in the Gazette Extraordinary. The, orders of
the Government ordinarily take effect from the moment they
are issued except when they cannot be effective due to their
nature. An order of suspension of the appellant when he was
on leave could be effective from the moment it was issued.
The appellant was on leave and was not discharging any
official functions. If he had been actually on duty, the
order of suspension would have taken effect from the moment
it reached him and from which moment alone the appellant
could have complied with that order by ceasing to work any
further in the discharge of his duties. It is therefore
immaterial whether the publication of the orders in the
Gazette Extraordinary amounted to sufficient notice to the
appellant of the various orders and whether the letters
communicating to him the orders reached him after the due
date of retirement. In the present case the orders were
effective from June 3, 1961, and their validity and effect
did not depend on the date of communication to the
appellant.

The case reported as
Bachhittar Singh v. State of Punjab
(l)
is not apposite and does not support the contention. It was
not a case of suspension. In that case a Government servant
preferred an appeal against his dismissal by the Revenue
Secretary of Pepsu Government to the state Government of
Pepsu. The Revenue Minister recorded his opinion that
instead of dismissing him he be reverted to his original
post. Thereafter, the State of Pepsu merged with the State
of Punjab. The remarks of the Revenue Minister were not
communicated to the appellant.

AIR 1963 S.C. 395.
subsequent to the merger, the Chief Minister, Punjab, dis-
missed the appeal. This order was communicated to the
appellant. The remarks of the Revenue Minister of Pepsu
were held not to be an order of the State Government and, in
the context of that case, it was said at p. 398:

"Before something amounts to an order of the
State Government two things are necessary.
The order has to be expressed in the name of
the Governor as required by cl. (1) of
Art.
and then it has to be communicated."

The remarks of this Court in
State of Punjab v. Sodhi
Sukhadev Singh
(1) and quoted in this case, do not go -so far
and lay down that a final decision by the Council of
Minister becomes an order when the Rajpramukh acts upon it
by issuing an order in that behalf to the respondent. The
further following remarks should be construed in the same
context:

"Thus it is of the essence that the order has
to be communicatcd to the person who would be
affected by that order before the State and
that person can be bound by that order. For,
until the order is communicated to the person
affected by it, it would be open to the
Council of Ministers to consider the matter
over and over again and therefore till its
communication the order cannot be regarded as
anything more than provisional in character."

These observations thercfore refer to an order made in the
circumstances of that case. It is to be noted that in both
these cases, no formal order was at all made by the Gov-
ernment. The impugned orders in the present case were
formally issued by the Governor on June, 1961, and -were
even published in the -Gazette extraordinary on June 10.
They were final orders. Of course, the Governor could, at
any time, pass further orders superseding those orders. The
possibility of a change in the order is not the main basis
for considering whether a certain order is effective or not.
The main contention of the appellant, however, is that r. 3.26(d
)
of the 1959 rules is not applicable to him and that if it be
applicable, his case is not covered by the terms of that
rule. The appellant joined the Punjab Civil Medical
AIR 1961 S.C. 493, 512.
Service, Class 1, in 1947. At that time the Punjab Civil
Medical Services, Class I (Recruitment and Conditions of
Service) Rules, 1940, hereinafter called the Medical Rules.
were in force. They were made by the Governor of Punjab in
the exercise of powers conferred on him by cl. (b) of sub-s.
(1) and cl. (b) of sub-s. (2) of
s. 241
of the Government of
India Act, 1935. Rule 13 of the Medical rules
is :

"In respect of leave, pension and other
cognate matters not specifically mentioned in
these rules, members of Service shall be
governed by such general rules as may be
framed in that regard by the Governor of the
Punjab, under cl. (b) of sub-s. (2) of
s. 241

of the Government of India Act, 1935."

The Punjab Civil Services Rules were also made by the
Governor of Punjab under
s. 241
of the Government of India
Act and came into force from April 1, 1941. They too were
in force at the time the appellant joined service. Rule
3.26 (d) did not find place in the 1940 rules. The 1959
rules which, as already stated, really came into force in
1953, have this rule. It reads :

"A Government servant under suspension on a
charge of misconduct shall not be required or
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 contention for the appellant is that the rule with res-
pect to the retirement of a Government servant relates to a
matter cognate to pensions and that therefore, in view of r.
13 of the Medical rules, matters of his retirement would be
governed by the 1941 rules. We are of opinion that the
question of retirement of a Government servant on super-
annuation or otherwise is not a matter cognate to pensions.
Pension follows retirement and may be said to be incidental
to it. Rule 13 of the Medical rules therefore does not
govern the terms of retirement of the appellant. It is r. 17
of the Medical rules which would govern the matter of his
retirement. This rule reads:

"In all matters not expressly provided for in
these rules, the members of the service shall
be governed by such general rules as may have
been or may hereafter be
framed by Government and by the provisions of the
Government
of India Act, 1935
."

It is clear from this rule that in the matter of retirement
the appellant would be governed by such eneral rules as
might have been made by the Government at the time the
Medical rules were made or as would be made by the Govrnment
subsequently. The latest general rules governing he
retirement of Government servants will govern the retirement
of the appellant even if it be assumed that the Medical
rules still govern his conditions of service.
Rule 3.26(d) is therefore applicable to the appellant.
The further contention of the appellant is that this rule
applies to a government servant under suspension on charge
of misconduct and therefore to a Government servant against
whom a formal departmental enquiry has been instituted for
enquiring into the charges of misconduct framed against him
and that no such charge being framed and no such
departmental enquiry being instituted prior to the order of
suspension of the appellant on June 3, 1961, the order of
suspension cannot be treated to be an order under r.
3.26(d). We do not agree. There is no Justification to give
such a restricted meaning to the word 'charge' in this rule.
The appellant refers to r. 7 of the punjab Civil Services
(Punishment and Appeal) Rules, 1952, hereinafter called the
Punishment and Appeal Rules,This rule reads:

"(1) Without prejudice to the revisions of the

Public Servants (Inquiries) Act, 1850
, no
order of dismissal, removal or reduction,
shall be passed against a person to whom these
rules are applicable, unless he has been given
a reasonable opportunity of showing cause
against the action proposed to be taken in
regard to him.

(2)The grounds on which it is proposed to
take such action, shall be reduced to the form
of a definite charge or charges which shall be
communicated in writing to the person charged
and he shall be required within a reasonable
time to state in writing whether he admits the
truth of all, or any, of the charges, what
explanation or defence, if any, he has to
offer and whether he desires to be heard in
person. If he so ,desires, or if the
authority empowered to dismiss,
remove or reduce him so directs, an oral
enquiry shall be held at which all evidence
shall be heard as to such of the charges as
are not admitted."

This rule comes into play only after a prima facie case is
made out against a Government servant and not at the state
of a preliminary investigation into accusations made against
a Government servant. But it does not follow that
suspension is not permissible till this stage of making a
formal charge arrives. Rule 3.26(d) is of general applica-
tion and therefore the expression 'charge of misconduct' in
this rule is not to be interpreted narrowly as meaning 'the
charges formally framed and communicated to the government
servant concerned' with the intimation that a formal
departmental enquiry had been initiated against him on those
charges. The appellant's contention does not find any
support, as urged, from the last portion of this rule which
reads 'until the enquiry into the charge is concluded and a
final order is passed thereon'. Of course, the enquiry
would be into the charges of misconduct on account of which
the Government servant has been suspended and the suspension
will continue till a final order is passed on those charges.
The requirements of the last portion of this rule do not in
any way lead to the conclusion that the enquiry into the
charges refers to a formal departmental enquiry into the
charges framed and communicated to the Government servant in
accordance with r. 7 of the Punishment and Appeal rules. We
are of opinion that 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 r. 3.26(d).

It was contended that the appellant's suspension without
calling him to explain the charges first, was bad as the
proceedings to suspend him were of a quasijudicial character
and therefore necessitated the Government's obtaining his
explanation to the charges of misconduct before passing the
order of suspension. The order suspending the Government
servant pending enquiry is partly an administrative order.
What has been held to be quasijudicial is the enquiry
instituted against the Government servant on the charges of
misconduct, an enquiry during
which under the rules it is necessary to have an explanation
of the Government servant to the charges and to have oral
evidence, if any, recorded in his presence and then to come
to a finding. None of these steps is necessary before
suspending a Government servant pending enquiry. Such
orders of suspension can be passed if the authority
concerned, on getting a complaint of misconduct, considers
that the alleged charge does not appear to be groundless,
that it requires enquiry and that it is necessary to suspend
the Government servant pending enquiry.

Explanation I to rule 2.2(b), Vol. II, 1959 rules, supports
the view that there can be suspension of a Government
servant even prior to the issue of charges of misconduct to
him, the Explanation being,
"Departmental proceedings shall be deemed to
have been instituted when the charges framed
against the pensioner are issued to him, or,
if the officer has been placed under
suspension from an earlier date, on such
date".

Bachhittar Singh
's Case(1) is no authority for the con-
tention that the initial order of suspension pending enquiry
must be made after obtaining the explanation of the Gov-
ernment servant concerned. That question did not at all
arise for consideration in this case.

In this connection we may also deal with another contention
of the appellant that the 1941 or 1959 rules do not empower
the Government to suspend a government servant pending an
enquiry. It is contended that the suspension contemplated
by the rules is the suspension which comes under r. 7.5,
1941 rules, or under rules 7.5 and 7.6 of the 1959 rules.
These rules do not invest the Government with the power of
suspension, but only provide either for certain periods
during a Government servant's service to be deemed to be
periods during which he was under suspension or during which
he be placed under suspension in view of the various
exigencies mentioned in those rules. No such formal rule is
to be found in any of these rules. The power of suspending
a Government servant is vested in the authority which
appoints the Government servant in view of
s. 16
of the
General Clauses Act, 1897.

A.I.R. 1963 S.C. 395.
The other substantial contention for the appellant in
connection with the inapplicability of r. 3.26(d) to his
case is that, under the 1941 rules which governed his
service initially, he had a right to opt for retirement on
superannuation and that therefore the 1959 rules could not
adversely affect that right and empower the Governor to
retain the appellant in service after the date of superan-
nuation without the consent of the appellant.
Rule 1.6 of the 1959 rules provides that nothing in those
rules shall operate to deprive any person of any right or
privilege to which he is entitled by or under any law or by
the terms of his agreement. Rule 5.28, Vol. II, 1941:

rules reads:

"A Government servant in Superior service who has attained
the age of 55 years may, at his option, retire on a
Superannuation pension."

The contention of the appellant is that this rule gives him
the right to retire on superannuation pension on attaining
the age of 55 years and that therefore he cannot be retained
in service after he had attained that age without his con-
sent, that he cannot be deprived of this right by the 1959
rules and that therefore r. 3.26(d) could not be applicable
to him after he had attained the age of 55 years.
There is nothing Corresponding to r. 5.28 of Vol. 11 of 1941
rules in Vol. 11 of the 1959 rules. It appears that r. 5.28
of the latter volume was cancelled. When the retirement of
the appellant, as already held, is governed by the 1959
rules and not by the 1941 rules, the right, if any, given by
the 1941 rules to the appellant to opt for retirement could
not be said to be a right which comes within r. 1.6 of the
1959 rules as rule 1.6 preserves such rights to which the
Government servant be entitled by or under any law or by the
terms of his agreement. It contemplates such rights which
the law in force gives to the Government servant at the time
the 1959 rules are in force. When the 1941 rules do not
govern him now, it cannot be said that he has a right to opt
for retirement on attaining the age of 55.

Rule 5.28, aforesaid, is in Vol. 11 of the 1941 rules which
embodies the rules relating to pensions and provident fund
and therefore the proper interpretation of that rule would
be that it provides for and permits the grant
50-2 S. C. India/64
of superannuation to a government servant who has opted to
retire after attaining the age of 55 years on being required
by the Government, in the exercise of its powers under r.
3.26 of Volume 1, to continue in service. This is clear
from the sequence of rules in Volume II.
Section 4
of
Chapter V deals with superannuation pension. Its part I
deals with conditions of grant. This part has got three
rules 5.27, 5.28 and 5.29. The other part deals with
procedure. Now, r. 5.27 provides that superannuation pen-
sion is granted to a Government servant in superior service
entitled or compelled to retire at a particular age. This
rule refers to the Government servant to whom superannuation
pension is granted. Rule 5.28 follows this rule under the
heading 'conditions of grant' and therefore is to be
interpreted to mean that superannuation pension can be
granted to a Government servant in superior service who is
retired at his option after he has attained the age of 55
years.

Assuming however that the appellant had a right to retire on
attaining the age of 55 years in view of this rule or r.
3.26(a), that right is subject to r. 3.26(d) in as far as
this rule provides that no Government servant would be
permitted to retire on his reaching the date of compulsory
retirement if he be under suspension on a charge of
misconduct.

It is also contended that r. 3.26(d) applies to those
Government servants whose date of compulsory retirement,
i.e., the date on reaching which they could be retired or
permitted to retire, precedes the date of superannuation on
which date they must retire. There is nothing in this rule
or in note no. 3 to r. 3.26 which should make us construe
the expression 'date of compulsory retirement' to be the
date on reaching which they can be retired or permitted to
retire prior to the actual date of superannuation. No such
rule was really necessary for such cases as it was not
incumbent on the State to require the officers reaching such
an age to retire. Requiring them to retire at that age was
an option with the Government. The expression 'date of
compulsory retirement' in r. 3.26(d) must really refer to
the dates mentioned in the earlier clauses of r. 3.26 and
they are those on which the Government servant attains the
age of 55 years or any of the ages mentioned
in clauses (b) and (c) of that rule. Clause (b) provides
that certain Government servants should be required to
retire at the age of 60. Clause (c)(i) provides for the
retirement of certain officers on reaching the age of 55
years and empowers the Government, however, to require them
to retire on reaching the age of 50 years in certain
circumstances.
The expression 'required to retire would
certainly refer to these officers whose cases come within
the previous clauses of r. 3.26 and may also be applicable
to Government servants who may be required to retire under
any other rule in particular circumstances. The width of
the rule cannot clearly make the rule inapplicable to the
cases covered by the earlier clauses of r. 3.26.
The expression 'permitted to retire', again, would refer to
cases where the Government servant opts to retire in view of
certain rules providing for his exercising such an option.
The following observations at p. 579 of the case reported as

The State of Bombay v. Saubhagchand M. Doshl
(1) do not
support the contention of the appellant. They simply mean
that the question under consideration
in that case
could
arise in those circumstances, the observation being.

"It should be added that questions of the
above character could arise only when the
rules fix both an age of superannuation and an
age for compulsory retirement and the services
of a civil servant are terminated between
these two points of time."

The question raised
in that case
was whether the order of
compulsory retirement amounted to an order of dismissal or
removal or not.

We are therefore of opinion that 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 applies to him and that his case comes
under that rule as he was on the date of his compulsory
retirement under suspension on charges of misconduct.
It is true that no question of Government retaining a
Government servant in service on Ms attaining the age of 55
years arises if the officer had once retired on attaining
that age. If the Government desires to have the advantage
(1)[1958] C.R. 571.
of his services after he had retired, the only course open
to the Government is to reemploy him. No such situation
however arises in the present case when the impugned orders
suspending the appellant, revoking his leave subsequent to
that date and retaining him in service after the date of
superannuation in view of r. 3.26(d) had been made prior to
the date on which he was to attain the age of 55 years.
It has also been contended that r. 3.26(d) infringes the
fundamental rights of the appellant as a citizen Of India
under
Art. 19
and
of the Constitution. We do not agree.
Rule 3.26(d) simply provides that the service which the
appellant took up voluntarily and on conditions as be
laid
down by
the relevant rules would continue in certain
circumstances even though the Government servant has
attained the age of superannuation. Further, any res-
triction the rule imposes on any alleged fundamental right
under cls. (f) and (g) of
Art. 19
is a reasonable
restriction in the interests of the general public. The
services to be rendered by the Government servant subsequent
to such an age, in view of r. 3.26(d), is in no sense a
service which can be equated with the expression 'begar' or
'forced labour' in
Art. 23.
The appellant is not forced to
do any work. He remains under suspension and does no work.
Even if it be assumed that the retention in Service of the
Government servant, in view of the provisions of r. 3.26(d),
can come within the expression 'forced labour' this rule
would be valid in view of
Art. 23(2)
which provides that
nothing in that Article shall prevent the State from
imposing compulsory service for public purposes. We are of
opinion that such retention would be for a public purpose,
as it is in the larger interests of the efficiency of the
services that a Government servant should remain within the
con-' trol of -the Government so long as the departmental
enquiry against him on a charge of misconduct is not con-
cluded and final orders are not passed.

It was also contended that some of the charges framed
against the appellant, if true, would constitute criminal
offences and that therefore criminal prosecution should have
been launched against him in place of the departmental
proceedings. There is nothing in the rules or the general
law which would support this contention. It is for the
Government to decide what action should be taken against the
Government servant for certain misconduct. Such a
discretion in the Government does not mean that the pro-
,vision for the departmental enquiry on such charges of
misconduct is in violation of the provisions of
Art. 14.

The service rules apply equally to all the members of the
service i.e., to all persons similarly placed and are not
therefore discriminatory. The Government has the discretion
in every case, considering the nature of the alleged
misconduct and other circumstances, whether a criminal
prosecution should be launched or not. The Government is
also free to conduct departmental proceedings after the
close of the criminal proceedings, if instituted.. There is
therefore nothing illegal in the Government instituting the
departmental proceedings against the appellant.
Before dealing with the allegation about the impugned orders
being made mala fide, we may deal with certain general
points raised by the appellant.

A grievance has been made that Sardar Pratap Singh Kairon,
the Chief Minister, was not made a party to the proceedings
on the writ petition. The appellant did not implead him in
the first instance. It was after the decision of this Court
in
R. P. Kapur v. Sardar Pratap Singh Kairon
(1) that the
appellant applied for the impleading of the Chief Minister
as the respondent in the petition. That application was
rejected by the High Court as no relief had been claimed
against him. The order cannot be said to be wrong when the
only ground mentioned for impleading the Chief Minister as a
party was to make it incumbent on him to file an affidavit,
which he was not legally obliged to, if he was not a party.
A number of affidavits sworn by Mrs. Sodhi, Pahwa, Yog Raj,
Om Prakash, Surendra Singh Kairon and Kirpa Singh were filed
on behalf of the respondent in the Court below. It is now
contended that these affidavits should not have been taken
into consideration when no reference to them has been made
in the written statement filed on behalf of the respondent.
No such objection seems to have been raised in the Court
below. The allegations in the petition and the affidavit of
the appellant with respect to matters concerning these
persons were not accepted by the
(1) [1961] 2 S.C.R. 143.
respondent. It was therefore not improper or irregular or
illegal for the State to have secured these affidavits and
to have filed them in Court. In fact, it should have
secured affidavit from the Chief Minister, Mrs. Kairon, the
Inspector-General of Prisons and the Vigilance Inspector
about the allegations concerning them. There is therefore
no force in this contention.

It has been contended that the allegations of facts made by
the appellant in the petition being not specifically con-
troverted in the written statement and being not denied by
the persons most competent to deny them, should be taken to
be established. The contention really refers to the
allegations made against the Chief Minister and his wife and
about certain matters in the tape recorded conversation the
appellant had with the I.G. of Prison and the Vigilance
Inspector. The appellant has filed a rendering of the con-
versation alleged to have taken place between him and these
persons. These persons have not denied, by their own
affidavits, that they did not have the alleged conversations
with the appellant, even though the officers of the State,
on the application of the State, were allowed to listen to
the recorded tape conversation and to prepare their own tape
records of the renderings of the tape recordings filed by
the appellant in Court in order to enable the State to
verify the appellant's allegation that the tape-recorded
talks were between the appellant and the persons alleged.
Absence of such affidavits can at best lead the Court to
accept what was alleged to be stated by these persons in the
conversations, but cannot be sufficient to establish what
the person talking states to be the statements of other
persons. The tape recorded conversation between the ap-
pellant and the other person talking with him can only be
corroborative evidence of the statement of appellant that
the other persons had made such and such statements, but
cannot be direct or primary evidence that the third person
had stated what the other speaker had told the appellant.
The High Court did not rely on the renderings of the tape
recorded conversation in view of the fact that such tape
recording can be tampered with. Tape recordings can be
legal evidence by way of corroborating the statements of a
person who deposes that the other speaker and
Minister towards the appellant. There is no allegation that
the boy suffered on account of his leaving the appellants
house prior to his being cured completely. There is nothing
in the record of the alleged conversation between the
appellant and the wife of the Chief Minister, tape recorded
talks nos. 6 and 2 in April and May respectively, to show
that the Chief Minister had asked the appellant to perform
the operation. Any statement attributed to the Chief
Minister, by his wife, even if the talk was with her,is not
evidence of what the Chief Minister had stated, as Sardarni
Pratap Singh Kairon has not been examined. Surendra has
denied, in his affidavit, the appellant's performing any
operation on him at the relevant time. In these
circumstances, it is not possible to hold that the Chief
Minister did ask such a favour from the appellant and that
even if the appellant's allegation is correct, he felt so
annoyed with the appellant at Surendra's leaving Jullunder
for a few days, be it from the house of the appellant or
from the Circuit House, as to break all such friendship with
the appellant as has been alleged by him and swing over to
the other extreme and harbour such grudge against him as to
abuse his position as the Chief Minister, get unjustified
enquiries launched against him and get the impugned orders
passed.

Another allegation is that the Chief Minister himself and
his family members, made numerous recommendations asking for
undue favours pertaining to the sphere of the appellant's
duties and that when they went beyond the limits of
endurance, the appellant expressed his inability to comply
with some of the extremely unreasonable demands. In support
of this contention, the appellant filed documents of the B-
series, nineteen in number. None of these documents, by
itself, would show that the appellant was asked to act in a
manner which may be said to be not in keeping with the
proper discharge of his official duties. The contents, by
themselves, show that the writers, who included the Chief
Minister, his sons Surendra and Girendra and his brother
Jaswant Singh, recommended to the appellant certain persons
for treatment, for admission in the hospital or for grant of
medical certificates. It is not to be presumed that untrue
certificates were required to be issued. The appellant does
not state in what manner he
acted improperly and why he did so. The there fact that he
was a friend of the Chief Minister would not justify it. He
held a responsible position and is expected to have done his
duty. In case he did not do his duty and thus suffered from
a weakness of character, his conduct can be said to be due
to his desire to remain in good grace with the Chief
Minister and thus gain some advantage in the service, be it
promotion, posting at a good station or protection from any
adverse action in case he acted improperly in the discharge
of his official duties. There is nothing in the petition to
indicate how and when the Chief Minister and the appellant
became friends. The relationship between the Chief Minister
and an efficient public servant may be a close one, but
would not amount to friendship and therefore the explanation
that the appellant showed undue favours for some time to
persons recommended by the Chief Minister and his relations
merely on account of friendship does not appear good and,
even if the appellant's allegation be correct, Ms showing
undue favours would not antagonize the Chief Minister. The
appellant has not shown which recommendations he did not
comply with and when such occasions arose. Therefore this
allegation does not establish the Chief Minister's bearing a
grudge against the appellant.

The other reason for the Chief Minister's grievance is said
to be the appellant's ceasing to comply with the un-
reasonable requests of the family members of the Chief
Minister for medicines and other expensive articles. He
does not say which requests and when he did not comply with.
So long as he complied with those requests, they would put
him in good grace with the Chief Minister and Ms relations.
It is however denied that he did supply such things. It
appears from certain postal receipts filed by the appellant
that certain parcels were sent to Mrs. Pratap Singh Karion
in July and October 1957, March and September 1958 and March
1959. The receipts do not show that these parcels contained
medicines. Tape recorded talks nos. 1, 3, and 4 do refer to
requests for and supplies of medicines by the appellant. It
is also alleged that among the expensive articles supplied
were two Singer sewing machines. Cash memos for the
purchase of two Singer sewing machines by Sardar Bahadur
Bagh Singh, father-in-
law of the appellant in July 1959 and October 1959, have
been filed. In July 1959, a wooden box was sent to Mrs.
Kairon through Pahwa who was then the Traffic Manager of the
Punjab Roadways at Amritsar. Om Prakash brought that box
from the appellant's place to Pahwa. Both these persons, Om
Prakash and Pahwa, have filed affidavits. They describe the
box to be of such a size that it could not possibly contain
the Singer sewing machine. Om Prakash however had stated in
the receipt, Annexure C. 9, that he had received a box
bearing label 'Singer Sewing Machine' from Dr. Partap Singh.
Tape recorded talk no. 3 in August 1959 records Mrs.
Kairon's conversation about receiving a machine and not
liking it on account of its colour and the appellants
telling her, that they would deduct the money in certain
contingencies. The State has not filed any affidavit by her
in denial of these statements. The conversation shows that
the appellant supplied a Singer sewing machine to Mrs.
Kairon and that some deduction could be made in the price in
certain contingency. There is no reason to disbelieve the
appellant's statement that he had supplied a Singer sewing
machine and medicines to her. These supplies by the
appellant would however ingratiate him with the Chief-
Minister. There is nothing on the record to indicate which
requests for what medicines and articles and when were
refused by the appellant and thus gave cause for grievance
to the Chief Minister.

Another reason for the Chief Minister's harbouring a
grievance against the appellant is said to have arisen in
April 1960 on account of the appellant's asking the Chief
Minister's friend, Kirpa Singh, whom he had kept as a guest
for about 7 months, to leave the appellant's house. Kirpa
Singh was the Manager of National Motors at jullunder. It
is alleged in the petition that this firm was either
directly or indirectly owned by Surendra Singh Kairon or a
close relation of his. This allegation is very vague. Both
Kirpa Singh and Surendra Singh have denied Surendra Singh's
having any concern with the National Motors at jullunder.
Kirpa Singh did stay at the appellant's house in the alleged
period. His letter Exhibit D-1, however does not indicate
that he felt annoyed at leaving the appellant's house where
he had stayed from September
1959 to the end of March 1960. In fact, Kirpa Singh, by his
letter, expressed his thanks to the appellant. There could
therefore be no reason for the Chief Minister to feel
annoyed and bear grudge against the appellant on account of
Kirpa Singh not staying as a guest of the appellant from
April 1960, even though Kirpa Singh was a friend of the
Chief Minister and was kept as guest by the appellant at the
instance of Surendra Singh, as appears from the tape
recorded talk no. 15.

The other two reasons for the Chief Minister's being
aggrieved with the appellant relate to what happened sub-
sequent to April 1960. It is alleged that in September
1960, the Chief Minister sent a message through the Home
Secretary, Punjab, to the effect that he had been over
liberal towards the Akali prisoners in the District Jail.
It is stated in the written statement filed by the
respondent that the District Magistrate, Jullunder, made
such a complaint to the Home Secretary, who happened to be
at jullunder and that the Home Secretary conveyed it to the
appellant at a meeting at which the Inspector-General of
Prisons and the Collector were also present. The matter was
closed as a result of what was talked about at the meeting.
Reference has been made in this connection to the tape
recorded conversation the appellant had with the Inspector
General of Prisons in November 1960. It appears from this
conversation that exaggerated information had reached the
Chief Minister and made him send the message and that he was
satisfied when the I.G. of Prisons explained the matter to
him. A Chief Minister's sending a message to an officer
about certain complaint received against him cannot be taken
to indicate his ill-will against that officer. He is bound
to do so as a part of his, duty.

The next reason is said to be that the Chief Minister had
used the appellant extensively in the Karnal Murder Case,
off the record, when it was the subject matter of an appeal.
The Sessions Judge acquitted the accused in that case in
November 1959 and the High Court dismissed the Government
appeal in May 1960. The appellant did his best to help the
prosecution with instructions in connection with the medico-
legal matters in the case and stated to the Chief Minister
that the outcome of the case would
be favourable. This is borne out from tape recorded talk
no. 17 recorded in April 1960. It is alleged that the dis
missal of the appeal by the High Court and the ultimate
dismissal of the Government petition for special leave to
the Supreme Court in October 1960 displeased the Chief
Minister who expressed his displeasure to the appellant. It
can be imagined that the Chief Minister in these cir-
cumstances would sarcastically speak to the appellant about
the strong assurances he had given about the outcome of the
case, but it is difficult to hold that that would make the
Chief Minister hostile to the appellant despite the hardwork
he had done, at his request, in helping the prosecution with
the medico-legal aspect of the case. It is significant to
note that the appellant does not allege that the Chief
Minister expressed his displeasure to him in May 1960,
shortly after the High Court-dismissed the State Appeal.
Another cause for the displeasure of the Chief Minister is
said to be the appellant's inability to comply with the
illegitimate contents of the instructions conveyed to him by
the Chief Minister in December 1956 in connection with Dr.
Dhillon's accompanying the Chief Minister for a number of
days as medical attendant. The nature of those instructions
has not been disclosed. What part the appellant played in
the alleged subsequent developments with the Accountant
General, Punjab, and which were unpalatable to the Chief
Minister, has not been indicated. The incident took place
in December 1957 and surely, even if true, does not appear
to have affected the alleged friendly relations between the
Chief Minister and the appellant up to April 1960.
We have considered all the reasons set out by the appellant
in his petition for the Chief Minister's bearing grudge
against him from May 1960 onward and are of opinion that
they, singly or cumulatively, fail to establish that the
Chief Minister had any grievance against the appellant.
The earliest definite incident which, according to the ap-
pellant, annoyed the Chief Minister, took place in the
beginning of April 1960, as Kirpa Singh was made to leave
his house at the end of March 1960. We have held that in
view of Kirpa Singh's letter of thanks to the appellant,
there
could have been no cause for the Chief Minister to feel
displeased with the appellant. This inference finds support
from the fact that the Chief Minister did not do anything
against the appellant soon after it, but on the other hand,
entrusted the appellant to perform an important operation
secretly on his son Surendra in the end of April 1960, which
could be only if he entertained good relations with the
appellant till then.

We have also held that the alleged inability of the
appellant to keep Surendra Singh at his place subsequent to
the appellant's performing the operation on him could not
have displeased the Chief Minister as no ill-effect fol-
lowed. This view, again, finds support from the fact that
the Chief Minister did nothing against the appellant till
the end of October when an enquiry was instituted against
the appellant. The alleged incident about Surendra's
leaving jullunder for a few days before he fully recovered
did not therefore lead to any animosity between the Chief
Minister and the appellant.

The High Court, Punjab, dismissed the State appeal in the
Karnal Murder case in May 1960. The appellant is said to
have helped the prosecution at the appellate stage. The
Chief Minister could have had cause for dissatisfaction but,
as we have mentioned earlier, the dismissal of the appeal
could not have given rise to such bad feeling in the Chief
Minister against the appellant as to lead to the transfer of
the appellant in October and to institute the enquiry
against him.

The recorded conversation between the appellant and the I.G.
of Prisons in November 1960 tends to indicate that the
appellant's relations with the Chief Minister could not have
been bad in November 1960 as he had sought the advice of the
I.G. of Prisons about his reporting to the Government about
the attitude of the District Magistrate at that meeting. If
the relations between the Chief Minister and the appellant
were as bad as we are asked to believe, such an idea in
connection with the attitude of the District Magistrate,
even if it was improper, could not have occurred to the
appellant at that time when the I.G. of Prisons himself had
told him : 'In my opinion that matter was hushed up'.
The appellant has, however, also urged certain matters as
indicating the malice borne by the Chief Minister towards
him and thus indirectly giving support to his al legation
that the Chief Minister had personal grievances against him.
The appellant's transfer from Jullunder to Amritsar was
ordered in December 1960. Jullunder, according to the
appeuant's statement in Court, is a coveted station for
Civil Surgeons. He had overstayed there the normal period
of three years. His transfer cannot be attributed to malice
of the Chief Minister, when an enquiry had been instituted
against him in connection with a complaint regarding the
discharge of his duties. Transfer, in such circumstances,
was the most natural order to be passed by the Head of a
Department. It may be that for the convenience of its
officers transfers are usually ordered in March and April
and are not ordered shortly before the period of retirement.
But any transfer outside that period or sometime before
retirement, for administrative reasons, cannot be said to be
a transfer ordered mala fide.

The appellant's brother-in-law, who was officiating in the
Provincial Civil Service, Executive Branch, was reverted to
the lower cadre on November 22, 1960, the reversion being
between the institution of a departmental enquiry against
the appellant and the orders of his transfer. This is said
to be evidence of the general ill-will which the Chief
Minister bore against the appellant. It is alleged in the
written statement that the reversion was on account of the
unsatisfactory conduct and work of - the appellant's
brother. We cannot take this reversion to be mala fide as
there is nothing on the record that it has been so held in
any proceedings which could have possibly been taken by the
appellant's brother-in-law against his reversion. Sub-
sequent cancellation of the reversion orders on his
representation, as stated in Court by the appellant, does
not, by itself point to reversion being made mala fide.
The appellant preferred to take leave preparatory to
retirement and, as already stated, such leave was sanctioned
to Mm. He proceeded on leave some time in December 1960.
Subsequently, things happened which could have given cause
to the Chief Minister for feeling aggrieved with the
appellant. The Blitz of January 14, 1961 pub-
lished an article under the caption Punjab's latest scandal:

The sewing machine of Kairon family'. According to this
article, the Civil Surgeon paid the price for the sewing
machine and supplied it to the Chief Minister's wife. It
also mentioned that the Roadways Official transported it.
It described the appellant to be the henchman of the Chief
Minister and a handyman for Ms family members. It stated
that the Civil Surgeon is said to have despatched several.
medicine parcels to the Chief Minister's wife by registered
post and that he was asked to supply them out of the hos-
pital stock. It referred to the Chief Minister's son having
a garage in Jullunder and to the Boarding of the Manager of
the Garage with the Civil Surgeon. It also mentioned about
the recommendatory letters from the Chief Minister's sons,
sister-in-law and brother to the Doctor. It referred to Dr.
Dhillon's affair. Naturally, the Chief Minister could have
taken this article to be inspired by the appellant and, more
so when the appellant's wife published a letter in the Blitz
dated March 18, 1961, practically admitting what had been
alleged in that article except such matters which went
against her husband. She stated that she sent parcels of
medicines by registered post and other means to the wife of
the Chief Minister and that the Garage Manager stayed with
them as required by the Chief Minister's wife.
Between January and March, several things happened which
indicated to the appellant that the Government was taking
action against him. On January 17, 1961, the appellant
received a letter dated January 13, 1961,from the Inspector
of Vigilance, District Jullunder, enquiring from him about
the place where and the date when he could be contacted for
ascertaining his view point on points relevant to the
enquiry ordered by the Punjab Government. This was in
connection with the enquiry instituted on October 29, 1960.
It is 'alleged for the appellant that the Chief Minister
could have seen the copy of the Blitz dated January 14 at
Delhi on January 13, 1961 and that he then started
vindictive proceedings against the petitioner and used the
Government machinery in a malicious manner to satisfy his
personal malice and vendetta. The implication is that it
was on the Chief Minister's knowing of the article published
in the Blitz dated January 14 that he directed
the Vigilance Inspector to issue the letter of January 13
to. the appellant for ascertaining the place and the date
when he could interrogate him in connection with the
enquiry. This is a far-fetched idea. The enquiry had been
in progress since October 29 and it must have been in due
course that the Vigilance Officer wrote the letter dated
January 13 to the appellant.

Whatever views the Vigilance Inspector expressed about the
various charges framed against the appellant in the tape-
recorded talk no. 16 on February 13, 1961, even if they be
his real views in the matter, is no index of the fact that
the superior officers who had investigated the case had
formed a similar opinion and that the action taken by the
Government a few months later in formally framing charges
with respect to those matters was actuated by malice. The
letter, Annexure J, dated June 3, 1961 states that the
evidence brought on record was sufficiently strong to
warrant serious action against him. Any views expressed by
the Vigilance Inspector who had really no business to
express them when he was deputed to get the explanation or
the appellant's version about certain allegations against
him, is not sufficient, in our opinion, to look at this
assertion in the letter with suspicion. In fact, if the
Chief Minister had started the enquiry in October on account
of malice and had prompted the Vigilance Inspector on
January 13 as a result of the publication of an article in
the Blitz of January 15, 1961, presuming that he had seen
that copy of the Blitz at Delhi on January 13, the Chief
Minister could have very well seen to the early submission
of the police report making out a case against the appellant
and would have taken action against the appellant much
earlier than June 3, 1961, when special steps had to be
taken to see that necessary legal action against the
appellant is complete before his date of retirement on June
16, 1961. Surely, the Chief Minister could have easily
managed these matters if he were actuated by malice and had
been taking keen personal interest simply with a view to
wreak vengeance against the appellant who had the audacity
to act against his wishes even though he had submitted to
them for an appreciable time.

In February 1961, the appellant received a copy of the
remarks entered in his annual confidential file for the
year April 1, 1959, to March 31, 1960: 'Professionally he is
reported to be somewhat about average. Yet, there has been
persistent complaints about his avarice and lack of
integrity'. The appellant did not appear to have taken any
action in connection with the adverse remarks communicated
to him till June 29, 1961, except in so far that he asked
the Director of Health Services about the period during
which a representation against such remarks could be made.
In his representation dated June 29, 1961, which was
submitted beyond the usual period for making representation,
the appellant said:

"I am constrained to point out that these
observations by Shri Kairon, Chief Minister
(Govt. in the Health Deptt.) do not reflect an
honest opinion in the context of certain facts
on record, a few of which are outlined below."

and referred to the various matters stated by him in the
petition. The written. statement shows that these remarks
were not made by the Chief Minister but were made by the
Secretary in the Health Department. We do not know when
these remarks were made. The mere fact that they were
communicated in February 1961 does not mean that they were
recorded near about that date. Annual remarks, in the
nature of things, must be made after some appreclable time
from the close of the year as they are based on the receipt
of the remarks from the departmental heads, who take their
own time in submitting such remarks. Even if they were made
near about February 1961, that would not show that they were
made maliciously on account of the Chief Minister's ill-will
as, by that time, the various complaints against the
appellant which had come to the notice of the enquiring
officer, would have also come to the notice of the
Government. The complaints, according to the charge-sheet
framed against the appellant,mostly relate to the years 1959
and 1960.

The tape-recorded conversations between the appellant and
the Chief Minister and his wife were played at a Press
Conference on March 29, 1961, at Chandigarh. This led to
some move for an adjournment motion in the Punjab
Legislative Assembly on March 30.

In April 1961, the appellant's wife sent a pamphlet 'Acts of
corruption by Shri Partap Sing Kairon and his' 51-2 S. C.
India'64
family members' to the Members of Parliament and other
leading persons throughout the country. This conduct of.
the appellant's wife would have again furnished cause for
grievance to the Chief Minister.

The question, however, is whether these acts of the ap-
pellant and his wife giving cause for grievance to the Chief
Minister between January and April 1961 can be said to have
led the Government to take the steps against the appellant
with regard to his suspension, revocation of leave,
extension of service and institution of a formal depart-
mental enquiry out of malice or that such steps were taken
against him in due course. We are of opinion that the steps
cannot be said to be taken mala fide merely because the
appellant and his wife acted in a manner which could
undoubtedly provide cause for grievance to the Chief Minis-
ter. Nothing is on record to indicate why the appellant and
his wife felt so prompted as to have an inspired article
printed in the Blitz of January 14 and to have the appel-
lant',,, wife's letter published in the Blitz in March 1961
and her pamphlets distributed all over the country. Surely,
the appellant and his wife cannot be said to have done this
with the noble object of bringing the misdeeds of the Chief
Minister of Punjab to public notice and thereby to cause a
change for the better in the administration of the affairs
in the Punjab. The appellant was not a free man. He was
still in service, though on leave preparatory to retirement.
He was to retire in June 1961 and therefore he had to
observe the usual discipline enjoined on a public servant.
His wife too was not to act in manner in which a public
servant's wife is not expected to act. It cannot be
believed that the appellant did not know what his wife was
doing. The conclusion is irresistable that the appellant
and his wife rushed to the Press so prematurely, even if
they could be said to be actuated with laudable motives of
bringing improvement in the administration of the State, to
create a shield for the appellant in case the police
investigation that was in progress against him culminated in
the formulation of formal charges against him and in the
instituting of a formal departmental enquiry against him.
The design was on the part of the appellant and cannot be
said to be on the part of the Chief Minister, who can be
responsible
for various orders of Government as the Minister-in-charge
of the department and as head of the Administration.
It has also been contended in connection with the alleged
mala fides that in view of r. 8.19 of the 1941 rules, the
Government should have refused the leave in December 1960 if
genuine complaints had been made against the appellant and
investigation was proceeding on them. The leave was to be
governed by the 1959 rules and r. 8.19 in those rules did
not make it incumbent on the Government to refuse leave to
the appellant in December 1960. The rule is :

"Leave shall not be granted to a Government
servant whom a competent authority has decided
to dismiss, remove or compulsorily retire from
Government service."

Government had not arrived at any such decision and there-
fore could not have and was not bound to refuse leave by
resorting to r. 8.19. Even the rule as it stood in the 1941
rules could not have justified the Government resorting to
it for refusing leave to the appellant. That rule was:

"Leave should not be granted to a Government
servant who is to be dismissed or removed from
service for misconduct or general
inefficiency, if such leave will have the
effect of postponing the date of dismissal or
removal, or to a Government servant whose
conduct is at thetime forming, or is in
the near future, likely to form,the
subject matter of departmental enquiry."

The rule wasnot mandatory. It was discretionary with the
Government to grant leave or not. The police was investi-
gating into the complaint against the appellant in December
1960 and it would have been too much for the Government to
form a definite opinion about the action to be taken against
the appellant then.

The grant of leave to the appellant in 1960 does not
therefore indicate that the Government had not received any
complaint against him by the time it granted him leave and
that the Government's subsequent action against the
appellant was mala fide.

Another submission for the appellant to establish his case
of mala fides against the respondent is that the Government
having sanctioned him leave, need not have taken recourse to
suspending him and revoking his leave, but
could have taken adequate action against the appellant under
r. 2.2(b), Vol. 11, 1941 rules, if he was found guilty of
grave misconduct as a result of the departmental proceedings
the Government was to institute against him. The mere fact
that Government took one type of action open to them and not
the other, is no ground to hold the Government action mala
fide. Further, resort to r. 2.2(b) could have been taken
only if the appellant was found guilty of grave misconduct
and it would have been always a debatable point whether the
charges made out against him established grave misconduct or
simple misconduct. Action under that rule can be taken only
in limited circumstances.

We are therefore of opinion that it is not established that
the impugned orders were made by the Governor not with the
ostensible object of a proper departmental enquiry against
the appellant with respect to the complaints received
against him, complaints found to have substance by the
police on investigation but were made with the ulterior
purpose of causing harassment and loss of reputation to the
appellant as he had been instrumental in making public
allegations tending to bring the Chief Minister of the State
into disrepute.

We therefore dismiss the appeal.

BY COURT: In view of the opinion of the majority, the appeal
is allowed. There will be no order as to costs here and in
the High Court.

Appeal allowed.