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2015 DIGILAW 2578 (ALL)

Shiv Shankar Mishra v. State of U. P.

2015-08-24

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. – Heard Sri Parijaat Belaura, learned counsel for petitioner, learned State counsel, Sri Prashat Arora, learned counsel on behalf of respondent No. 2 as well as Sri M.M. Asthana, learned counsel for respondent No. 3 and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order of suspension dated 06.05.2015 passed by District Basic Education Officer, Amethi by which petitioner has been placed under suspension. 3. Learned counsel for petitioner has challenged the impugned order submits that it is totally incorrect on the part of District Basic Education Officer, Amethi that while he was posted in the institution in which petitioner is working as Headmaster he was sleeping rather the said authority has never inspected in the institution on 05.05.2015, as such, the said basis of passing the impugned order is incorrect, on the said ground the petitioner cannot be placed under suspension. 4. Next argument advanced by learned counsel for petitioner are that the impugned order is mala fide exercise of power on the part of respondent No. 2 as he is personally prejudiced/biased against him, so liable to be set aside. 5. After hearing learned counsel for parties and going through the record as well as from the original record produced by Sri Prashat Arora, learned counsel on behalf of respondent No. 2, the position which emerged out that on 05.05.2015 two authorities of the department, namely, Sri Arun Kumar Tripathi and Sri Akhilesh Kumar Srivatava to inspect the institution where the petitioner was working and it was found that he was sleeping on duty period, taking into consideration the said submitted a report, the impugned order dated 06.05.2015 has been passed, as such the argument made by learned counsel for petitioner that the order of suspension is contrary to material on record has go not force, rejected. 6. So far as the argument advanced by learned counsel for petitioner in respect to mala fide exercise of power on the part of respondent No. 2 is concerned, neither he has made the said authority as party nor any foundation has been made in this regard. 7. Mala fide exercise of power means use of power for a purpose other that of which the power is conferred upon the authority. 7. Mala fide exercise of power means use of power for a purpose other that of which the power is conferred upon the authority. Same will be the case when the order is for a purpose other than which finds in the order itself. This ulterior or alien purpose clearly speaks of misuse of power and suggests bad faith. 8. Lord Lindley in General Assembly of Free Church of Scotland v. Over town 1904 AC 515, has stressed the need of bona fide use of power by the administrative authority and it is held that there is a condition implied in this as well as in other instruments which create powers, namely that the powers shall be used bona fide for the purpose for which they are conferred. That an act done in bad faith vitiates the act has also been indicated by Warraington, CJ. In State v. Pool Construction 1926 Ch 66. as follows: - "No public body can be regarded as having statutory authority to act in bad faith or corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative." 9. Malice or mala fide is of two types: - (1) express malice or "malice in fact" and (2) implied or legal malice or "malice in law". Mala fides violating proceedings may be factual or legal. 10. Malice in fact means when an action is taken out of personal ill-will, enmity, animosity, vengeance or spite, it can be described as "malice in fact", as there is personal mala fide. 11. Malice in law means when an action is taken or power is exercised without just or reasonable cause or for a purpose foreign to the statute it can be said that there is legal mala fide or "malice in law". 12. The former is actuated by extraneous considerations whereas the latter arises where a public authority acts deliberately in defiance of law, may be without malicious intention or improper motive (Somesh Tiwari v. Union of India, (2009) 2 SCC 592 ). 13. The State is under obligation to act fairly without ill will or malice-in facts or in law. "Legal malice" or "malice in law" means something done without lawful excuse. 13. The State is under obligation to act fairly without ill will or malice-in facts or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill felling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object mala fide exercise of power does not imply any moral turpitude, exercise of statutory power for purposes foreign to those for which it is in law intended. (VideJaichand Lal Sethia v. State of West Bengal & Ors., AIR 1967 SC 483 ; A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207 ;State of A.P. v. Goverdhanlal Pitti, AIR 2003 SC 1941 ). 14. Thus a question of mala fide may be looked into from two different angles. One relates to the mind set of the authority and the other to the actual manner of exercise of the power. On the first part, the inquiry is limited to the search if there is any personal bias, oblique motive or ulterior purpose in the act. The other is an inquiry into the powers of the authority and whether they have been exercised contrary to the requirements. Where apart from the allegations nothing is stated in the petition attributing any personal bias, grudge, oblique motive or ulterior purpose, there is absolutely no need for exercising any inquiry by putting the opposite party on cross-examination to prove his affidavit of denial of the allegation of mala fide. 15. Where apart from the allegations nothing is stated in the petition attributing any personal bias, grudge, oblique motive or ulterior purpose, there is absolutely no need for exercising any inquiry by putting the opposite party on cross-examination to prove his affidavit of denial of the allegation of mala fide. 15. Hon'ble the Supreme Court in the case of Ratnagiri Gas and Power Private Limited v. RDS Projects Limited and others (2013) 1 SCC 524 , has considered the malice of law and hold as under: - "Coming then to the question whether the action taken by the appellant RGPPL was vitiated by malice in law, we need hardly mention that in cases involving malice in law the administrative action is unsupportable on the touchstone of an acknowledged or acceptable principle and can be avoided even when the decision maker may have had no real or actual malice at work in his mind.The conceptual difference between the two has been succinctly stated in the following paragraph by Lord Haldane in Shearer v. Shields, (1914) A.C. 808 quoted with approval by this Court Additional District Magistrate, Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521 . ".....Between 'malice in fact' and 'malice in law' there is a broad distinction which is not peculiar to any system of jurisprudence.The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the flaw and can only act within the law. He may, therefore, be guilty of 'malice in law',although., so far as the state of ins mind was concerned heacted ignorantly, and in that sense innocently. 'Malice in fact' is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act." 16. Reference may also be made to the decision of this Court in State of AP & Ors. v. Goverdhanlal Pitti, (2003) 4 SCC 739 where the difference between malice in fact and malice in law was summed up in the following words: "The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means 'something done without lawful excuse'. This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means 'something done without lawful excuse'. In other words, 'it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite '. It is a deliberate act in disregard of the rights of others'. [See Words and Phrases legally defined in Third Edition, London Butterworths 1989]. Where malice is attributed to the State, it can never be a case o f personal ill-will or spite on the part of the State. If at all, it is malice in legal sense, it can be described as an act which is taken with a oblique or indirect object... " 17. To the same effect is the recent decision of this Court in Ravi Yashwant Bhoir v. District Collector, Raigad and Ors, (2012) 2 SCC 407 where this Court observed: "MALICE IN LAW: This Court has consistently held that the State is under an obligation to act fairly without ill will or malice-in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. "Legal malice"or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and will fully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207 ; Union of India thr. Govt. of Pondicherry and Anr. v. V. Ramakrishnan and Ors. (2005) 8 SCC 394 ; and Kalabharati Advertising v. Hemant Vimalnath Narichania and Ors., AIR 2010 SC 3745 )." 18. For the foregoing reasons, the writ petition lacks merit and is dismissed.