TaxTMI 
TaxTMI 
2006 (11) TMI 667
X X X X Extracts X X X X
X X X X Extracts X X X X
....utation. 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 documents and to take copies thereof. Since the said pray....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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. The findings of the Enquiry Officer were vitiated being perverse.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 defendants for : A recovery of the sum of Rs. 5,00,000/- as compensation of damages; Costs of suit; Some ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ong 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 Law against an accused, so does a disciplinary proceeding but the heavy machinery of a State of other authority against the person accused of Service offence. If the State emp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....earned 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 justification or excuse, to commit a wrongful act. II. Reckless disregard of the law or of a person's legal rights. Ill will: wickedness of heart. This sense is most typical in non legal contexts". "Malice m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....use 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 heart, including the will; and has been said to mean a bad mind; ill-will against a person; a wicked or evil state of the mind towards another; an evil intent or wish or design to vex or annoy another; a wilful intent to do a wrongful act; a wish to vex, annoy or injure another person or as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ugnance: 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-will is a settled bias of the disposition. It is very indefinite, and may be of any degree or strength. Rancour is a deep seated and lasting feeling of ill-will. It preys upon the very mind of the subject of it. While enmity may be generous and open, rancour is malignant and private. Malice is that enmity which can abide its opportunit....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 person an insolvent, to declare a person lunatic or to wind up a company, to make action against legal practitioner under the Legal Practitioners Act, maliciously procuring arrest or attachment in execution of a decree or before judgment, order or injunction or appointment of receiver, arrest of a ship, search of the plaintiff's premises, arrest of a person by police. Malicious abuse of process of Court Malici....
X X X X Extracts X X X X
X X X X Extracts X X X X
....osecution 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 ended in the defendant's favor, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) malicious use of process. (Black, 7th Edn., 1999) "The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect - the improper....
X X X X Extracts X X X X
X X X X Extracts X X X X
....omplained 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., 2000). 'Malice' means and implies spite or ill-will. Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. (See Prabodh Sagar v. Punjab State Electricity Board and others. (2000) 5 SCC 630. The legal meaning of 'malice&#....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nnocently". 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 567). While it is true that legitimate indignation does not fall within the ambit of malicious act, in almost all legal inquiries, intention, as distinguished from motive is the all important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse. (See Jones Bros. (Hunstanton) v. Stevans (1955) 1 QB 275: (1954) 3 All ER 677 (CA)). Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others. (2001) 1 SCC 182). 13. A bare perusal of the averments made in the plaint show that they are extremely vague, lacking in details and after ....