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TMI Blog1968 (3) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... was maliciously disposed towards him. 3. The facts ot this case are, that while the petitioner was posted as Tehsildar in Roh-tak in 1961, he received a D.O. letter No. 8494-E(II)-60/645, dated the 10th February, 1961 (Annexure A), from the Revenue Secretary to the Financial Commissioner to the; effect that the confidential report on the petitioner's work and conduct during the year 1959-60 while he was Tehsildar at Ambala showed that he had committed irregularities in the allotment of land in village Sarasgarh, and that the Financial Commissioner (Revenue) trusted that he would remedy the defects which had been brought to his notice. The petitioner said that it appeared to him that the Financial Commissioner Revenue had made some wrong entries in his personal record as he never worked as Tehsildar at Ambala. The petitioner brought this position to the notice of the Financial Commissioner on 7th of April, 1961 that he had never been posted at Ambala throughout the period of his service nor had he done any allotment work, vide Anuexure B. The petitioner received a reply from the Revenue Secretary to the Financial Commissioner on 21-10-1961 that the matter was under consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection of the petitioner's representation, it was said that it was considered on merits and rejected by the Financial Commissioner Revenue who at that time was Shri A. L. Fletcher and this was done with the approval of the Revenue Minister. Respondent No. 2 had nothing to do with the rejection of the petitioner's representation. It was also said, that the petitioner who was a Tehsildar and an official in the Rehabilitation Department, ought not to have attested the affidavit of his father-in-law as it was intended to secure allotment. Respondent No. 2 in his affidavit said that he was not the Financial Commissioner Revenue when the petitioner's representation was rejected and it did not remain pending with him for any length of time. The earlier confidential remarks were corrected and substituted in so far as they conformed with facts. He denied the allegations made of personal prejudice against him, or that he was bent upon spoiling the petitioner's record. These allegations, according to respondent No. 2, were entirely baseless. The decision for making the adverse remarks against the petitioner was taken on merits and on the ground that he had committed irregulari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an order reinstating the petitioner pending the enquiry. When the order of the Minister was conveyed to respondent No. 2, the latter felt resentful and directed that the petitioner should appear before him. When the petitioner reported himself to the Deputy Secretary. Revenue, he was informed that he could bo reinstated only if he applied for one month's leave which he did. Despite this, no orders regarding his reinstatement were passed but he was told that he should apply for four months' leave and the petitioner had no alternative but to comply with this. It was on 28th of January, 1967, that the reinstatement of the petitioner was ordered and it was mentioned in the same order that he be granted four months' leave from the date of reinstatement. The petitioner stated that this was a great hardship as he had exhausted all his leave and tbat he should he allowed to resume duty but he was not permit-fed to do so. In the return, it is stated that no compulsion was used on the petitioner ordering him to proceed on leave. He was required to take leave because the Revenue and Development Minister had desired that the petitioner should he reinstated on the clear understand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 9th of August 1967, was communicated to the petitioner through the Commissioner, Ambala Division, on 14th of August, 1967 11. On the basis of above allegations, the quashing of the impugned suspension order by issuance of a writ of eertiorari is prayed for. The withdrawal of all enquiries pending against tbe petitioner before respondent No. 2 and their entrustment to some other suitable officer of competent jurisdiction has also been prayed. 12. On behalf of the petitioner, an application dated 7th of December, 1967, was made praying that two affidavits by way of replications to the two returns filed on behalf of respondents 1 to 3 and by respondent No. 2 respectively, may be permitted to be placed on the record vide X/1. and X/2. Along with X/l, he has also attached three Annexures P. Z/1 to P. Z./3. This request was allowed subject to just exceptions. The affidavit X/l by way of replication is a very lengthy document in which a large number of new facts and incidents have been introduced which are neither covered by the petition nor referred to in the respondents' affidavits. 13. One noticeable feature of the two affidavits X/1 and X/2 is that invectives and opprobrio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersonal knowledge but on information, the sources of information ought to be clearly disclosed. The petitioner's several affidavits infringe the provisions of Order 19. Rule 3, when they should have been strictly observed. Such affidavits being violative of the requirements of the mandatory provisions of law, deserve to be Ignored. The words that the contents of the affidavit "are true and correct tt> the best of my knowledge and belief carry no sanctity, and such a verification cannot be accepted. It has been held over and over again that affidavits must be either affirmed as true lo knowledge, or from information received provided the source of information is disclosed, or as to what the deponent believes to be true provided that the grounds for such belief were stated. Such affidavits where the verification lacks the essential requirements, are valueless. 17. In Padmabati Dasi v. Rasik Lal Dhar, (1910) ILR 37 Cal 259, Jenkins C. J. and Wood-roffe J. observed: -- "We desire to impress on those who propose to rely on affidavits that, in future, the provisions of Order 19, Rule 3, must be strictly observed, and every affidavit should clearly express how much is a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong without justification. It is not necessarily hate or ill-will, but it is a state of mind which is reckless of law and ot the legal rights of others. All acts done with an evil disposition or unlawful motive with an intention to cause injury and without a lawful excuse may be characterised as malicious. Malicious act is not one which is done accidentally, thoughtlessly or negligently but designedly, wilfully or wantonly. The term "bad faith" is a shade milder than malice, and implies breach of faith or wilful failure to respond to one's known obligation or duty. Bad judgment or negligence is not "bad faith", which imports a dishonest purpose, or some moral obliquity and implies conscious doing of wrong. It is much more than a mistake of judgment and is synonymous with dishonesty. 19. A person is entitled to accept that the conduct of the party even when engaged in discharging an administrative or executive function ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biassed; much less, warped by resentment, or personal dislike, vide R. v. Askew, (1768) 98 ER 139 (141). 20. Whenever mala fides or abuse of power is alleged in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad proceeded against the petitioner on the basis of a complaint and a preliminary enquiry had been conducted by the Rehabilitation Department. The petitioner was charge-sheeted and also placed under suspension as the gravamen of charges warranted it. Another allegation against respondent No. 2 is that despite the wishes of the Revenue and Development Minister to whom a direct representation had been made by the petitioner that he should not be suspended but reinstated, respondent No. 2 disregarded it and the Revenue and Development Minister had then ordered his reinstatement. Respondent No. 2, in his affidavit, has stated that though the Revenue Minister had passed orders for his reinstatement, it was on the orders of the Minister that he was required not to be taken in office but to be required to remain on leave during the pendency of the enquiry. Respondent No. 2 has also denied that he had verbally told the petitioner that he should tender his resignation as he could not be retained by him in the Revenue Department. The threat said to have been held out by the respondent of putting the petitioner under suspension, has been denied by respondent No. 2 as baseless. The allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the facts and circumstances on which the same are based must be clearly alleged so as to enable the authority whose order is impugned to be able to give a proper and appropriate repiy to the same. As I nave said, mere reference to the expression 'mala fides' in the petition has no meaning". 23. Reference may also be made to A. H. Magermans v. S. K. Ghose, AIR 1966 Cal 552 (565). This petition cannot be sustained on the allegation of mala fides on the part of respondent No. 2. 24. The second contention of the petitioner was, that the order of suspension could only have been passed by the Commissioner, Ambala Division, who alone was the competent authority under the Punjab Tehsildari Rules, 1952. Rule 13 provides that the authorities specified in column 3 of Appendix 'A' are empowered to impose upon the members of the service mentioned in column 1, the penalties specified in column 2. In the second column of Appendix A are enumerated the several penalties including suspension, removal or dismissal. The third column shows that the punishing authority in the case of suspension of Tehsil-dar being imposed as penalty is, the Commissioner, and in case of removal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n obtained and found unsatisfactory. A departmental enquiry can only begin at this stage and this stage should be started forthwith. Since it may not be possible to complete the inquiry in all cases in one month, Government has decided that the Enquiry Officer should complete all the proceedings and submit his report within a period of three months and the punishing authority should not take much longer to decide the case (obtaining the advice of the Punjab Public Service Commission, where required expeditiously). In no case should the period between suspension, if ordered, and final order exceed six months". In this case, the order of suspension preceded the charge-sheet which was served on 17th February, 1968. The latest circular instructions are to be found in Revenue Department letter No. 7159-E (II)-63/3689, dated the 8th August, 1963, wherein it has been laid down that in suitable cases, the suspension of an officer can be ordered even before serving on him the charge-sheet. These instructions have not the force of a statutory rule and the enquiry cannot be vitiated because of charge-sheet having been served upon the petitioner after he was suspended. There is no sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X
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