1. Petitioner was appointed as Class IV employee in Chaudhary Jawahar Singh Inter College, Sutiyani, Etawah (hereinafter referred to as Institution). He clams that his date of birth recorded at the time of entry into service was 15.12.1958 and on that basis he was to retire after completion of 60 years of age in the year 2018. He applied for leave which was sanctioned by the Principle of Institution till 30.8.2004. While he was on leave the Committee of Management in collusion with the Principal and District Inspector of Schools (in short the DIOS) retired the petitioner on 30.6.2004 and took steps for fresh appointment on Class IV posts allegedly vacated by the petitioner on account of his retirement ordered on 30.6.2004.
2. It is contended by learned counsel for the petitioner that the respondent no. 7 was appointed after the petitioner was retired and papers for retiral benefits were processed and were sent to Joint Director Education for approval. Papers were returned back by the Joint Director saying that on the basis of the date of birth recorded the petitioner was not to retire on 30.6.2004 nor had he sought voluntary retirement. While the issue with respect to his retirement was still on approval was accorded to the appointment of respondent no. 7 on 29.4.2005. No action was taken in pursuance to order dated 20.12.2004 passed by the Joint Director, whereby a direction was issued to allow the petitioner to continue in service vide communication dated 27.6.2005. However a direction was issued by the DIOS to ensure the continuity of the services of the petitioner till he reaches the age of superannuation. In the meanwhile, it so appears that the salary bill in respect of arrears of salary from May 2003 to August 2004 was processed by the DIOS. Communication shows that the petitioner has been retired from service and that no appointment has been made on the post held by the petitioner whereas approval to the appointment of respondent no. 7 had already been granted by the DIOS on 29.4.2005.
3. Un mindful of the direction issued by the Joint Director Education, DIOS approved the retirement of the petitioner vide his order dated 7.4.2006. Approval was granted much before the post of the petitioner become vacant. The petitioner was impelled to prefer a Civil Misc Writ Petition No. 23781 of 2006 before this Court which was disposed of by this Court directing the Joint Director Education to pass a reasoned order in accordance with law. In pursuance of the said direction, Joint Director Education vide order dated 28.6.2006 directed that the petitioner should be allowed to work on the post and the order dated 7.4.2006 which was passed by the DIOS was quashed. Even while the order of retirement was quashed, the Committee of Management did not permit the petitioner to join the Institution. After being compelled by various orders passed by the Educational Authorities letter dated 17.7.2006 was issued by the Principal of the College terminating the services of respondent no. 7 vide communication dated 17.7.2006. This order was questioned by the Rakesh Kumar in Civil Misc Writ Petition No. 40412 of 2006 before this Court in which no interim stay was granted in his favour. Even after the termination of Rakesh Kumar, petitioner was not allowed to join. Having failed to procure the stay order Committee of Management of the said Institution faced with various orders ultimately terminated the services of the petitioner w.e.f. 22.12.2006. It is this order which is subject matter of challenge before this Court.
4. It is pertinent to mention here that the record of the case was also summoned.
5. The contention of learned counsel for the petitioner is that the services of the petitioner were brought to an end by issuing an order of retirement on 30.6.2004. On what basis he was ordered to be retired from service is not disclosed by the respondents. Admittedly, case of the petitioner is that his date of birth is 15.12.1958 while the stand of the respondents was that his date of birth was 15.12.1948. Assuming that his date of birth was 1948 he was still to retire in the year 2008 and how the respondents retired the petitioner in the year 2004 is in itself sufficient to conclude that it was done arbitrarily and with malafide intent.
6. Admitted case of the parties is that there is no application filed by the petitioner seeking his voluntary retirement. Direction issued in this behalf by the Joint Director Education clearly indicates to this fact. The very basis of his retirement being arbitrary and malafide in nature, the matter should have rested here but the respondents more particularly the DIOS in collusion with the Principal and Committee of Management made every effort not only to obey the order of higher officers but also of this Court in not allowing the petitioner to resume his duties, once his order of retirement was quashed by the Joint Director of Education on 28.6.2006.
7. An order of termination was passed on 20.12.2006 which clearly goes to show that the order was passed without notice to the petitioner only with intention to ensure his ouster from service. After having failed to justify his retirement, recourse was taken to have the services of the petitioner terminated. This in itself is sufficient to indicate the manner in which the Principal and the Managing Committee acted in gross violation of the law with malafide intention. Intent and purpose was to circumvent the order passed by the Higher Authorities as well as by this Court to ensure that the appointment of respondent no. 7 is kept intact. There cannot be a case of misuse of power then the one in hand. Purported termination of the petitioner by itself is sufficient indicator that it was intended to secure a co-lateral purpose.
8. Stand of the respondents in their counter affidavit is that that petitioner's actual date of birth is 1948 and not 1958 as alleged by him. There was tampering in the date of birth in the first page of the service book where the date of birth of the petitioner was recorded. Petitioner has forged his date of birth as a result of which his services were terminated. Since he has forged his date of birth and an order was passed retiring the petitioner w.e.f 30.6.2004. It is further contended by learned counsel for the respondents that the petitioner's order of retirement has already been set aside by the Joint Director as a consequence of which appointment of respondent no. 7 stands quashed as he was appointed against the post held by the petitioner. Petitioner's services has been terminated on account of misconduct w.e.f. 30.6.2004. Having failed to sustain an order of retirement, respondents took a plea that petitioner's services were terminated w.e.f. 30.6.2004
9. Heard learned counsel for the parties and perused the material on record.
10. Following facts would reveal the manner in which the respondents have passed the order:-
(a) That the approval to the petitioner's retirement was granted by the DIOS in the year 2006 whereas appointment of the respondent no. 7 was made immediately after the petitioner was retired from service i.e. 30.6.2004. Approval for his appointment was granted in the year 2005 when the post was not vacant;
(b) That impelled by the various direction issued by the higher authorities as well as by this Court Principal of the Institution terminated the services of the respondent no. 7. He filed a writ petition before this Court in which no interim direction was issued. Having failed to obtain an interim direction, Principal was left with no option but to terminate the services of the respondent no. 7 in the year 2006. Even while the said appointment was quashed petitioner was not allowed to join the post;
11. After the order of retirement was quashed respondents terminated the services of the petitioner on the pretext that he has committed gross misconduct without disclosing the nature of misconduct committed by the petitioner. It will be relevant that this Court vide order dated 30.11.2011 sought report from the Principal as to when notice was served on the petitioner in respect of an inquiry said to have been initiated against him. There is no record which indicates that notices were served on the petitioner nor it is revealed as to what was the nature of misconduct having been committed by the petitioner. It is also important to note that petitioner admittedly was not allowed to join by the respondents and the question of his committing any misconduct during this period is unimaginable. Principal and the Managing committee do not choose to file any counter affidavit in the Court. Regarding other contention that the petitioner had tampered his date of birth also cannot be sustained. While examining the service book produced by the respondents it shows that 15.12.1958 has been changed to 15.12.1948 both in figures and words. Initial words recorded in the service book including the date of birth 15.12.1958 is entirely in different ink whereas the tampering part changing 5 to 4 and the words recorded are in different ink. Prima facie it is not a case that four has been changed to five. It is a case where five has been changed to four and by effecting this tampering petitioner could not be beneficiary of the same. Second aspect of the matter is that the service book remains in the custody of the Institution. If at all any tampering has been effected it can only be in connivance with the officials of the Management. It is not the case of the respondents that the service book was in custody of petitioner. Even if there was tampering the matter was required to be enquired as to who has tampered the same. In this behalf enquiry was required to be conducted which has not been done.
12. An order which is not bona fide but has been passed for collateral purposes, amounts to exercise of power malafidely. The malice in law is quite a distinct factor to malice of fact. The power which is said to have been exercised on account of malafide may be vitiated on account of either malice in fact or malice in law. In Shearer Vs. Shields, (1914) AC 808 at Page 813 Viscount Haldane described "malice in law" as under :-
" A person who inflicts an injury upon another 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 law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently."
13. Again in Pilling v. Abergele Urban District Council ( 1950) 1 KB 636 Lord Goddard, CJ said that where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter.
14. Lord Esher M.R. in The Queen on the Prosecution of Richard Westbrook vs. The Vestry of St. Pancras, (1890) 24 QBD 371 at page 375 said :
" If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion."
15. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause.
16. The Apex Court has summarised "malice in law " in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :
"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)
17. The Apex Court further in para 9 of the judgment in S.R.Venkatraman (supra) observed:
" 9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."
18. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :
" We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."
19. While applying this principle, it is clearly visible that the power to retire the petitioner on 30.6.2004 was neither based upon the date of birth as contended by the respondents nor by the petitioner. It clearly emerged that the order to retiring him was prompted by a mistaken belief in existence of non existing fact or circumstances. It would be clear unreasonable that what is being done under such mistaken belief to almost be said to have been done in bad faith. The influence of the extraneous factors coming in the decision making process renders the order to have issued under such an influence. Such an administrative order which is based on reason of fact which do not exist is infected with abuse of power.
20. On the aforesaid discussion, it is clear that whole exercise undertaken by the respondents was with an intent to appoint respondent no. 7 which they could do only after retiring the petitioner initially in the year 2004 then subsequently by terminating the services of the petitioner in the year 2006. Fraud has been played by the Principal and the Managing Committee in connivance with the DIOS who was working in the district in the year 2004-06. Prima facie there is sufficient evidence that the tampering has also been effected by the officers of the Managing Committee including the Principal.
21. Coming to the merits of the case, it clearly appears from the record that the respondents have arbitrarily retired the petitioner on 30.6.2004. Contention raised is that petitioner had submitted an application for voluntary retirement. It was on that basis he was retired. This plea has not been accepted by the Joint Director who had refused to grant an approval to the petitioner's retirement. He has also on the basis of the record held that there was no application of Voluntary Retirement filed by the petitioner. In absence of their being any application for Voluntary Retirement petitioner could not be retired on 30.6.2004 by the respondents even if it is assumed that his date of birth was 1948 not 1958 as even then he had to be retire in year 2008. This in itself is sufficient indication that the order passed was arbitrary and malafide. Second aspect of the matter is that there is no notice issued to the petitioner before issuance of an order of termination. It is no where discussed as to what were the charges levelled against the petitioner on the basis of which services of the petitioner has been terminated. Nothing is discernible from the record filed by the respondents. Principal and Managing Committee had deliberately not filed the reply in this case. In absence of any charge sheet served on the petitioner no order of termination could have been issued.
22. In the aforesaid context, the writ petition is allowed. The order impugned dated 20.12.2006 is hereby set aside. Respondents are directed to allow the petitioner to join the post which was held by him and pay him arrears of salary from May 2003 till date with interest @ 10 % within a period of one month from the date of production of certified copy of this order.
23. Petitioner had suffered at the hands of the respondents who have wilfully and by abuse of power terminated the services of the petitioner w.e.f. 30.6.2004. He has been allowed to suffer both in terms of money and mental torture for such a long period for no fault. It will be appropriate to award costs to the petitioner for having suffered on account of respondents. An amount of Rs. 75000/- is imposed as costs on the management to be paid to the petitioner.
24. Senior Superintendent of Police of District Etawah is also directed that a criminal case be registered against the Committee of Management, the Principal and the then DIOS who was working at the relevant time in this behalf and to complete the investigation in the matter within a period of three months. Compliance report be sent to this court on or before 4.5.2012.
Dated: 2.3.2012 RKS/