TaxTMI 
TaxTMI 
2006 (11) TMI 667
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....s appeal and Rs. 50,000/- for loss of his reputation. The High Court upheld the judgment and decree of the trial court. 3. Filtering out unnecessary details the background facts are as follows: Respondent no.1 was an employee of the appellant No.1- Board and disciplinary proceeding was initiated against him and a First Information Report (in short the 'FIR') was lodged against him and others per alleged misconduct and commission of various offences. Initially, the respondent No.1 was placed under suspension for alleged acts of misconduct while functioning as the Superintending Engineer, pending investigation drawal and disposal of the disciplinary proceedings against him. Since no charge sheet was issued within a period of four months a writ petition was filed by the respondent No.1 for quashing departmental proceedings. The writ petition was disposed of directing the Board to issue the charge sheet. Accordingly the charge sheet was issued on 17.1.1986 containing 10 charges. Respondent No.1 submitted his reply to the said charge sheet inter alia denying and disputing each and all of the charges leveled against him. He prayed for permission to inspect certain doc....
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....pportunity of hearing and thus natural justice was denied to him. Further he was not given access to several vital documents. It was contended that the findings recorded by the enquiry officer were perverse and no reasonable person could have come to such finding on the basis of materials on record. The second show cause notice betrays the complete non-application of mind. In any event the punishment proposed was disproportionate with the offence alleged to have been established in the enquiry. 5. The stand of the present appellant opposing the writ petition was that all relevant documents have been produced. Respondent No.1 with the sole object of delaying the proceedings had filed writ petitions at different points of time. Materials on record clearly established misconduct. Therefore, grievances of the writ petitioner cannot be entertained. The High Court after considering the rival stand and materials on record ultimately came to hold as follows: "To sum up: the enquiry proceedings were vitiated because the petitioner was not given reasonable opportunity of being heard. The petitioner was not given inspection of several vital documents which prejudiced his defence. ....
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....ought false charges against the Plaintiff illegally suspended him from service. It has been clearly held by the Hon'ble High Court at Calcutta in C.O. No. 5644(w) of 1987 that it has not only affected his reputation but also visited him with serious civil and pecuniary consequences. The plaintiff submits that he has suffered great mental shock on account of such humiliation at the hands of the defendant Nos. 1-3 after having completed his long spell of a brilliant career in service. The Plaintiff had to engage reputed barristers and advocate at different stages of litigation for which the plaintiff had to spend a huge sum of money with much difficulty. The plaintiff, therefore, claims Rs. 5,00,000/-only as compensation for defamation. The defendant Nos. 6-9 have been made parties as they published the defamatory news against the Plaintiff without even trying to ascertain the truth from the plaintiff. The defendant Nos. 4-5 are made parties as they are main instigators in suspending the plaintiff on absolutely false charges." The prayer was to the following effect: "The plaintiff, therefore, prays for a decree jointly and severally against the defen....
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....aid that the plaintiff was not entitled to damages for defamation. We are of the opinion that the newspapers being exonerated from the charges of defamation along with the officers of the Board who were alleged to have forwarded the information to them, does not mean that the Board itself can be relieved from the charge of causing loss of reputation of the Plaintiff. Which might take months or years, get back all his arrear pay and seniority. But is this a true recompense of all that had happened to him in the meantime? If say, he has been under suspension for four years as here, his children will tell their mates in School or College their father is innocent but has been proceeded against wrongfully; he will answer at all social gatherings shortly and sympathetic questions about the stage of the disciplinary Enquiry. In our opinion, the suit was maintainable and properly decreed. There can remain no doubt on the basis of the findings of fact that the plaintiff had suffered a grievous wrong. The limitation in English Courts on the basis of the law prevailing in England do not extend and to the Indian Courts. Just as a criminal case puts the heavy machinery of the ....
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..../- by coming to the conclusion that the amount appeared to have been awarded as damages for malicious prosecution causing harassment. The reasons are unfathomable. In response, learned counsel for the respondent No.1 supported the judgment and decree of the trial court as affirmed by the High Court by the impugned judgment. According to him an honest officer was being harassed by unnecessary proceedings and the innocence of the respondent no.1 was established by the judgment of the High Court in the writ petition. 12. Malice and Malicious Prosecution as stated in the Advance Law of Lexicon, 3rd Edition by P. Ramanatha Aiyar read as follows: "Malice - Unlawful intent Will; intent to commit an unlawful act or cause harm, Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper motive in the defendant's mind at the time of the publication which is his sole or dominant motive for publishing the words complained of. This must he distinguished from legal malice or malice in law which means publication without law full excuse and does not depend upon the defendant's state of mind. The intent, without justifica....
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.... one deliberately injures another in an unlawful manner. Malice means an indirect wrong motive. '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." Malice, in ordinary common parlance, means ill-wiIl against a person and in legal sense, a wrongful act done intentionally, without just cause or reason. It is a question of motive, intention or state of mind and may be defined as any corrupt or wrong motive or personal spite or ill will. 'Malice' in common law or acceptance means ill-will against a person, but in legal sense it means a wrongful act alone intentionally without just cause or excuse. It signifies an intentional doing of a wrongful act without just cause or excuse or an action determined by an improper motive. "MALICE", in common acceptation, means, ill will against a person; but in its legal sense, it means, a wrongful act done intentionally without just cause or excuse" Malice in its common acceptation, is a term involving stint intent of the mind and hear....
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....essarily be a feeling of enmity, spite or ill-will; it may be due to a desire to obtain a collateral advantage. MALICE in fact is malue animus indicating that action against a party was actuated by spite or ill will against him or by indirect or improper motives. Malice: hatred: aversion: antipathy: enmity: Repugnance: ill-will: rancour: malevolence: Malignity: malignancy. Hatred is a very general term. Hatred applies properly to persons. It seems not absolutely involuntary. It has its root in passion, and may be checked or stimulated and indulged. Aversion is strong dislike. Aversion is a habitual sentiment, and springs from the natural taste or temperament which repels its opposites, as an indolent man has an aversion to industry, or a humane one to cruelty. Antipathy is used of causeless dislike, or at least one of which the cause cannot be defined. It is found upon supposition or instinctive belief, often utterly gratuitous. Enmity is the state of persona! opposition, whether accompanied by strong personal dislike or not; as "a bitter enemy." Repugnance is characteristically employed of acts or courses of action, measures, pursuits, and the like. Ill-....
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....successful. But an action lies for initiating civil proceedings. Such as action, presentation of a bankruptcy or winding up petition, an unfounded claim to property, not only unsuccessfully but maliciously and without reasonable and probable cause and resulting in damage to the plaintiff. (Walker) Malicious abuse of legal process. A malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by order of Court - the malicious perversion of a regularly issued process, whereby an improper result is secured. There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object - not the purpose which it is intended by the law to effect; in other words, a perversion of it. Malicious abuse of process. Wilfully misapplying Court process to obtain object not intended by law. The wilful misuse or misapplication of process to accomplish a purpose not warranted or commanded by the writ. An action for malicious abuse of process lies in the following cases, A malicious petition or proceeding to adjudicate a perso....
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.... it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause." "A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy." The term "malicious prosecution" imports a causeless as well as an ill-intended prosecution. 'MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy. In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein. 1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause. 2. The cause of action resulting from the institution of such a proceeding. Once a wrongful prosecution has....
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....e conducted by private citizens in the name of the Crown. This exercise of civic rights constitutes what with reference to the la of libel is termed a privileged occasion: but if the right is abused, the person injured thereby is, in certain events, entitled to a remedy. (See H. Stephen, Malicious Prosecution, 1888; Builen and Leake, Prec. P1., Clerk and Lindsell. Torts, Pollock, Torts; LQR. April 1898; Vin., Abr., tit. "Action on the Case" Ency. of the Laws of England.) "MALICIOUS PROSECUTION" means that the proceedings which are complained of were initiated from a malicious spirit, i.e, from an indirect and improper motive, and not in furtherance of justice. [10 CWN 253 (FB)] The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432). "Malicious prosecution" thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted." (per DIPLOCK U in Dailison v. Caffery, (1965) 1 QB 348)). (Stroud, 6th Edn., 20....
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....in defamation, malice in fact has to be proved". (See State of Punjab v. U.K. Khann and others (2001) 2 SCC 330). Malice in law. "Malice in law" is however, quite different. Viscount Haldane described it in Shearer Shields, (1914) AC 808 as: "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with the 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 mind is concerned, he acts ignorantly, and in that sense innocently". 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 fro want of reasonable or probable cause. (See S.R. Venkatarcunan v. Union of India (1979) 2 SCC 491) Malice-per common law. "Malice" in common law or acceptance means ill will against a person, but in legal sense means a wrongful act done intentionally without just cause or excuse. (See Chairman and M.D., B.P.L. Ltd v. S.P. Gururaja and others JT 2003 (Suppl. 2) SC 515 and Chairman and MD, BPL Ltd. v. S.F. Gururaja and others (2003) 8 SCC ....