AYTARGAR - (1.) THE Judgment of S. K. Das, Subba Rao and Rajagopala Ayyangar JJ. was delivered by
(2.) THIS appeal is against a judgment of the High court, Punjab, dismissing a petition filed by the appellant in that court under Art. 226 of the Constitution and has been preferred pursuant to a certificate of fitness granted under Art. 133(1) (c). The appellant was a Civil Surgeon in the employment of the State government who had been granted leave preparatory to retirement, and subsequently, in June 1961, orders were passed by government (1) revoking the leave he had originally been granted and recalling him to duty, (2) simultaneously placing him under suspension pending the result of an inquiry into certain charges of misconduct, and (3) ordering a departmental inquiry against him. The legality of these orders was challenged by the appellant in the petition that he filed in the High court. The petition was dismissed by the learned Judges, but on application by the appellant, he was granted a certificate of fitness on the strength of which he has filed the present appeal. The facts of the case leading up to the appeal before us are set out by our learned Brother Dayal, J. in his judgment fully and in great detail and so we have thought it unnecessary to cumber this judgment with them. Two points were urged before us by the appellant who argued the case in person and presented the facts and the law with commendable clarity and moderation. The first of them was that every one of the impugned orders of June 1961 (a) recalling him from the leave previously granted, (b) placing him under suspension pending an inquiry, and (c) starting an inquiry against him were illegal for the reason that such action on the part of government was contrary to and not permitted by the relevant Service Rules applicable to him. The second ground of challenge was that these orders, assuming them to be within the power of government on a proper interpretation of the rules were passed mala fide, by or at the instance of the Chief Minister, Punjab, who was personally hostile to him by reason of certain incidents and circumstances which he set out and that the impugned orders were prompted by the desire on the part of the Chief Minister to wreak personally his vengeance on the appellant. The relevant rules on the topic as well as their interpretation have all been dealt in the judgment of Dayal, J., and we agree in the main with his conclusion that the orders impugned were not beyond the power of the government. We should, however, add that we should not be taken to have accepted the interpretation which Dayal, J., has placed on each one of the several rules which he has considered. Besides, we should not be taken to have acceded to the submission of the learned Attorney-General who appeared for the respondent-State, that the provision in Art. 310(1) of the Constitution that 'members of a Civil Service of a State hold office during the pleasure of the governor', conferred a power on the State government to compel an officer to continue in service of the State against his will apart from service rules which might govern the matter even after the age of superannuation was reached, or where he was employed for a defined term, even after the term of his appointment was over. We consider that to construe the expression 'the pleasure of the governor' in that manner would be patently unwarranted besides being contrary to what this court said in State of Bihar v. Abdul Majid(1). In the view which we have taken on the second ground of challenge to the orders of government we have not considered it necessary to examine in detail the several rules to which our attention was drawn or their proper interpretation. We shall now proceed to deal with the second point 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 government. The expression 'Government' in the context is the functionary within the State who is vested with executive power in the relevant field. Of course, the Constitution vests the executive power in a State in the governor but he is constitutionally directed to act on the aid and advice of his Ministers. In the case before us it is common ground that it was the Chief Minister who was 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.
(3.) IF this were put aside, the second ground of attack on the orders may be viewed from two related aspects--of ultra vires 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 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,' 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. and C. Planning(3). This is on the principle that if in such a situation the dominant purpose is unlawful then the act itself is unlawful and it is not cured by saying that they had another purpose which was lawful. As we said earlier, the two grounds of ultra vires and mala fides are thus most often inextricably mixed. Treating 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 an alien purpose-wreaking the minister's vengeance on the officer would be mala fide and a colourable exercise of that power, and would therefore be struck down by the courts. In this connection we might cite a dictum of Lord Lindley in General Assembly of Free Church etc.v. Overtoun(1) when the learned Lord said at page '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 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. ;