Case laws

White v John Warwick & Co Ltd 

[1953] 1 WLR 1285

Court of Appeal

 

The facts are stated in the judgement of Denning LJ.

 

Denning LJ

 

In this case the defendants supplied a cycle on hire to the plaintiff, who was a news vendor, intending that he and his servants should ride it. The cycle was defective and, in consequence of the defect, the plaintiff was thrown off and injured, and he now claims damages for breach of contract or for negligence. The defendants claim to be protected by the printed clause of the agreement which... read ["Nothing in this agreement shall render the owners liable for any personal injuries..."].

 

In this type of case two principles are well settled. The first is that if a person desires to exempt himself from a liability which the common law imposes on him, he can only do so by a contract freely and deliberately entered into by the injured party in words that are clear beyond the possibility of misunderstanding. The second is: if there are two possible heads of liability on the part of defendant, one for negligence, and the other a strict liability, an exemption clause will be construed, so far as possible, as exempting the defendant only from his strict liability and not as relieving him from his liability for negligence.

 

In the present case there are two possible heads of liability on the defendants, one for negligence, the other for breach of contract. The liability for breach of contract is more strict than the liability for negligence. The defendants may be liable in contract for supplying a defective machine, even though they were not negligent. (See Hyman v. Nye.) In these circumstances, the exemption clause must, I think, be construed as exempting the defendants only from their liability in contract, and not from their liability for negligence.

 

Mr Gibbens [counsel for the owners] admitted that if the negligence was a completely independent tort, the exemption clause would not avail; but he said that the negligence here alleged was a breach of contract, not an independent tort. The facts which gave rise to the tort were, he said, the same as those which gave rise to the breach of contract, and the plaintiff should not be allowed to recover merely by framing his action in tort instead of contract. That was the view which appealed to Parker J, but I cannot agree with it.

 

In my opinion, the claim for negligence in this case is founded in tort and not on contract...

 

... In my judgement, [the exemption clause] exempts the defendants from liability in contract, but not from liability in tort. If the plaintiff can make out his cause of action in negligence, he is, in my opinion, entitled to do so, although the same facts also give a cause of action in contract from which the defendants are exempt.

Same case

White v John Warwick and Co Ltd

White v John Warwick and Co Ltd

Citation: [1953] 1 WLR 1285

1.       This case laid down that exemption clauses in a contract may exclude a person from contractual liability but he may still be liable under tort.

2.       The Plaintiff took a cycle on hire from the Defendant.3.       The Agreement contained the following exemption clause, “Nothing in this

Agreement shall hold the owners liable for any personal injury.”4.       While riding the cycle, the saddle tilted and the Plaintiff was thrown off and

injured.5.       In an action brought by the Plaintiff, the Defendant sought to rely on the

exemption clause. It was held that even though the exemption may exclude contractual liability, the Defendant would be responsible for negligence.

Town area committee vs Prabhu Dayal case

Allahabad High CourtTown Area Committee And Ors. vs Prabhu Dayal And Anr. on 12 July, 1974Equivalent citations: AIR 1975 All 132

Author: H Swarup

Bench: H Swarup

JUDGMENT

Hari Swarup, J.

1. This is a defendant's appeal arising out of a suit for recovery of compensation for damages suffered by the plaintiff by

an act of defendants. Plaintiff's case was that he had made constructions of 16 shoos on the old foundations of the

building known as Garhi and the defendant Town Area Committee act-ins through its Chairman and Vice-Chairman, who

are defendants 2 and 3 illegally demolished, these constructions. By this demolition plaintiff suffered a loss of Rs. 1,000.

According to him the notice under Section 186 of the U. P. Municipalities Act was bad as it gave to the plaintiff only two

hours' time to demolish the constructions and not a reasonable time as contemplated in Section 302 of the Act. It was also

asserted that demolition after this notice was bad as the notice was served at a time when the plaintiff was out of station.

The action was said to be mala fide.

2. The plea of the defendants was that the constructions had been made by the plaintiff without giving the notice of

intention to erect the building under Section 178 and without obtaining the necessary sanction under Section 180 of the

Act. It was denied that the action was mala fide and it was asserted that the notice to demolish the constructions had

been given earlier on 18th December requiring the stoppage of further construction and removal of constructions already

made and when it was not complied with, an order had been passed by the District Magistrate directing the Town Area

Committee to take action under Section 186. Thereafter another notice was given on December 21 which also was not

complied with and only then the building was demolished in accordance with law. On these grounds it was alleged that

the plaintiff was not entitled to claim any damages.

3. The trial Court held that the plaintiff had made constructions without complying with the requirements of Section 178

and obtaining sanction as required under Section 180 of the Act. It also found that the provisions had been made

applicable to the town area and in the absence of necessary sanction the Board had a right to demolish the constructions.

The trial Court further found that notice had given reasonable time because the earlier notice had not been complied

with. On these findings the trial Court dismissed the suit.

4. Plaintiff went up in appeal. The appeal was allowed by the first appellate Court and suit was decreed against

defendants. Nos. 1 to 3. The claim was however, dismissed as against defendant No, 4, i. e. the State of U. P. The first

appellate Court held that the Chairman and Vice-Chairman had acted with malicious intention in ordering the demolition

of the building. It held that the order of the District Magistrate could not legalise the demolition because the notice had

not given reasonable time to the plaintiff to demolish the constructions. On the finding that the defendants' action was

high handed the lower appellate Court awarded plaintiff a decree for damages. Defendants Nos. 1, 2 and. 3 -have now

come UD in appeal.

5. A preliminary objection has been, raised on behalf of the respondents to the effect that no appeal lies. The contention is

that as the damages claimed were to the extent of Rs. 1,000/- and the suit was one of the nature cognisable by the Court

of Small Causes, no second appeal would He in view of Section 102, Civil P. C, I am unable to agree with this contention.

Section 15 of the Provincial Small Cause Courts Act makes all suits cognizable by the Court of Small Causes except those

which are specified in the second schedule. Clause 35 (j) of the second schedule is relevant for purposes of this case. It

exempts a suit for compensation "for illegal, improper or excessive distress, attachment or search, or for trespass,

committed in or damage caused by, the illegal or improper execution of any distress, search or legal process". The

present is a suit according to the plaintiff, for compensation for damage caused by illegal execution of a legal process.

According to learned counsel in the present case as the legal process itself wag challenged to be invalid this provision will

not apply. According to him this exception applies only to such cases where the process is legal but the execution alone is

illegal. This contention cannot be accepted as no such distinction can be read in Clause (j) of exception 35 of the second

schedule. It is not understandable that the legislature will exclude a case where the process is legal and the execution

alone is illegal from the cognizance of a Court of Small Causes, but will let a case where both the process and the

execution are illegal cognizable by summary Court. The actual, damage in both such cases is suffered not by the issue of

the legal process, but only by its execution. The suit in either case is of a similar nature and will be excluded from the

cognizance of the Court of Small Causes. In the present case the plaintiff had claimed compensation on the allegation that

the plaintiff had suffered damage because of illegal execution of the legal process. Such a suit was not cognizable by the

Court of Small Causes and it was rightly instituted by the plaintiff in the Court of the Munsif. The second appeal will

therefore lie. The preliminary objection is overruled.

6. Coming to the merits of the case, it appears that the lower appellate Court has completely misdirected itself. The claim

was on the basis of damages caused to the plaintiff by an act of the defendants. The plaintiff can get compensation only if

he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Malice does not enter the

scene at all. A legal act, though motivated by malice, will not make the actor liable to pay damages. This proposition finds

support from Salmond's observations "So too a landlord who serves a valid notice to quit cannot be held liable in tort

because his motive was the vindictive one of punishing the tenant for having given evidence against him in other

proceedings." (Salmond on the Law of Torts, Fifteenth Edition, p. 18) ........................ Merely because some officer has

malice against a citizen who has committed a wrong will not render the action of the authority invalid if it is otherwise in

accordance with law. Mere, malice cannot disentitle a person from taking recourse to law for getting the wrong undone.

It is, therefore, not necessary to investigate, whether the action was motivated by malice or not.

7. Before the plaintiff can get any damages he must prove that he had suffered an injury. Law does not take into account

all harms suffered by a person which caused no legal injury. Damage so done 13 called damnum sine injuria. Such a

damage does not give the sufferer any right to get compensation. The term 'injuria' is to be understood in its original and

proper sense of wrong (in jus. contrary to law Salmond on the Law of Torts, p. 17). In the present case there is no doubt

that the plaintiff was himself guilty of committing the wrong. As found by the trial Court, the plaintiff had not given any

notice under Section 178 of the U. P. Municipalities Act and had not obtained the sanction contemplated by Section 180.

According to the finding of the trial Court the building abuts a public street and prior notice and sanction were necessary.

These findings have not been reversed by the appellate Court. Section 185 of the Act says:

"Whoever begins, continues or completes the erection or re-erection of, or any material alteration in a building or part of

building or construction or enlargement of a well, without giving the notice required by Section 178, or in contravention

of the provisions of Section 180, subsection (5) or, of any order of the Board refusing sanction or any written directions

made by the Board under Section 180 or any bye-law, shall be liable upon conviction to a fine which may extend to one

thousand rupees but which, in the absence of special and adequate reasons to the contrary to be mentioned in the

judgment of the Court, shall not be less than two hundred and fifty rupees."

Section 186 of the Act gives the Board a power to demolish a construction the making of which amounts to an offence

under Section

185.

8. According to learned counsel for the plaintiff, the demolition was not done in accordance with law as the notice did not

give reasonable time, and hence the Municipal Board will be liable to pay damages. The notice though of an earlier date,

was served on the 18th and it required demolition before the 18th. Of course such a notice could not be complied with in

its terms, but that would not authorise the plaintiff to maintain the constructions illegally made. The plaintiff did not

appear before the authority to show cause why the building should not be demolished. Again after three days another

notice was given and the building was thereafter demolished. There was no objection made that the two hours' time given

in the notice of the 21st was insufficient. Had the plaintiff made a complaint that he had suffered a loss because the

demolition was done the same day and he would not have suffered loss if greater time had been granted for demolishing

the illegal constructions, that would have been a different matter. The case of the plaintiff, however, was that he had a

right to maintain the building and the action of Board was bad because it was mala fide. In this plea the time factor

ceases to be of any importance. The notice cannot in these circumstances be said to be such as to make the consequential

action illegal.

9. There is also no merit in the contention of the learned counsel that the plaintiff had suffered injuria by the act of the

demolition of the building because he had a fundamental right to hold and enjoy the property even though it was

constructed without prior sanction from the Municipal authorities. There is no right to enjoy property not legally obtained

or constructed. A person has been given by law a right to construct a building, but that right is restricted by various

enactments, one of which is the U. P. Municipalities Act. If a person constructs a building illegally, the demolition of such

building by the municipal authorities would not amount to causing "injuria" to the owner of the property. No person has

the right to enjoy the fruits of an act which is an offence under law.

10. As the plaintiff has failed to prove that he had suffered injuria in the legal sense, he is not entitled to set any

compensation. The decree of the Court below cannot even though the plaintiff may have suffered damages, be sustained.

11. In the result, the appeal is allowed, the decree of the lower appellate Court is set aside and that of the trial Court

restored. In the circumstances of the case parties will bear their own costs.

S.R.VENKATRAMAN VS. UNION OF INDIA CASE

Supreme Court of IndiaSmt. S. R. Venkataraman vs Union Of India & Anr on 2 November, 1978Equivalent citations: 1979 AIR 49, 1979 SCR (2) 202

Bench: Shingal, P.N.

PETITIONER:

SMT. S. R. VENKATARAMAN

Vs.

RESPONDENT:

UNION OF INDIA & ANR.

DATE OF JUDGMENT02/11/1978

BENCH:

SHINGAL, P.N.

BENCH:

SHINGAL, P.N.

REDDY, O. CHINNAPPA (J)

CITATION:

1979 AIR 49 1979 SCR (2) 202

1979 SCC (2) 491

CITATOR INFO :

D 1980 SC 563 (26)

E&D 1991 SC 818 (25)

ACT:

Fundamental Rules-Rule 56(j) (i)-order of Compulsory retirement in 'public interst'-Nothing on record to justify the order -

Order if should be set aside. Administrative Law-Administrative action-An abuse of power-What is- order based on non-

existing fact-Effect of. Words and Phrases- 'Malice in fact' and 'Malice in law'-Explained and distinguished.

HEADNOTE:

The appellant who was working as Joint Director, Family Planning in the Directorate-General of the All India Radio was

prematurely retired from ser vice. She made a representation, but it was rejected.

In her writ petition under Art. 226 of the Constitution she alleged that she had a long and clean record of nearly three

decades but that baseless allegations had been made against her, because of malicious vendetta of the then Chairman of

the Central Board of Film Censors. She also alleged that the impugned order was arbitrary and capricious and that the

retiring authority had not applied its mind to the record of her case.

The writ petition was dismissed in limine. On the appeal, the first respondent conceded that there was nothing on the

record to justify the impugned order, and that the Government was not in a position to support that unfair order.

Allowing the appeal,

^

HELD: (1) There was nothing on the record to show that the Chairman of the Central Board of Film Censors was able to

influence tho Central Government m making the impugned order. It was not therefore the case of the appellant that there

was actual malicious intention on the part of the Government in making the alleged wrongful order so as to amount to

malice in fact. [205E]

(2) 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. [205G] .

Shearer & Anr. v. Shields, [1914] A.C. 508 at p. 813 referred to.

(3) It was not necessary to examine the question of malice in law as it was trite law that if a discretionary power had been

exercised for an unauthorised purpose, it was generally immaterial whether its repository was acting in good faith or in

bad faith. [205H-206A] 203

Pilling v. Abergele Urban District Council. [1950] 1 K.B. 636: referred to.

(4) The principle which is applicable in such cases is that laid down by Lord Esher M.R. in 24 Q.B.D. 371 at p. 375, and

followed in (1924) 1 Ch. 48 3. [206C-D] (5) When a public body is prompted by a mistaken belief in the existence of a non-

existing fact or circumstance it will be an error of fact. That is so clearly unreasonable that what is done under such a

mistaken belief might almost be said to have been done in bad faith. [206E] (6) When the respondent conceded that there

was nothing on record to justify the impugned order, that order must be set aside for it amounts to an abuse of the power

which was vested in the authority concerned as it had admitted the influence of extraneous matter. [206H-207A] (7) It will

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. [206F]

(8) An administrative order which is based on reasons of fact which do not exist must be held to be infected with abuse of

power. [206G]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2764 of 1977.

(From the Judgment and order dated 24-11- 76 of the Delhi High Court in C.R.P. No. 1264/76). M. K. Ramamurthi and

Faqir Chand for the appellant. P. N. Lekhi and Girish Chandra for the respondent. The Judgment of the Court was

delivered by SHINGHAL J., This appeal by special leave is directed against an order of the Delhi High Court dated

November 24, 1976, dismissing the appellant's writ petition in timing. The appellant was promoted to the post of Director

in the All India Radio after some thirty years of service under the Government of India. She was working as Joint Director,

Family Planning, in the Directorate General of the All India Radio, when she was served with an order dated March 26,

1976, retiring her prematurely from service, with immediate effect, on the ground that she had already attained the age

of 50 years on April 11, 1972, and the President was of the opinion that her retirement was in the "public interest". The

appellant made representation on April 6, 1976, but it was rejected on July 1, 1976. She therefore filed a writ petition in

the Delhi High Court under article 226 of the Constitution in which she, inter alia, made a mention of the hostile attitude

of one V. D. Vyas who took over as Chairman of the

204

Central Board of Film Censors from her on February 11, 1972. She also made a mention of the adverse remarks made by

Vyas in her service record after she had ceased to work under him which, according to her, were "totally unfounded,

biased, malicious and without any justification". She stated that "her integrity had never been considered doubtful 28

years before or 4 years after the period of 21 months she spent under him." It was also contended that some baseless

allegations were made against her because of "malicious vendetta" carried on by Vyas, and that the order of premature

retirement was not in public interest but was "arbitrary and capricious", and that the retiring authority had not "applied

its mind to the record" of her case. It was particularly pointed out that as he was confirmed in the post of Director on

April 28, 1973, with retrospective effect from July 10, 1970, any adverse remark in her confidential report before that

date could not legitimately form the basis of the order of her premature retirement. The appellant also pointed out that

the order cast a stigma on her conduct, character and integrity and amounted to the imposition of one of the major penal

ties under the Central Civil Services (Classification, Control and Appeal)Rules, 1965.

It is not in controversy, and has in fact been specifically stated in the order of premature retirement dated March 26,

1976, that the appellant was retired in the "public interest" under clause (j) (i) of rule 56. of the, Fundamental Rules. That

rule provides as follows,- "(j) Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the

opinion that it is in. the public interest to do so have the absolute right to retire any Government servant by giving him

notice of not less than three months in writing or three months' pay and allowances in lieu of notice.

(i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five

years, after he has attained the age of fifty years."

It is also not in dispute that the power under the aforesaid rule had to be exercised in accordance with the criteria and

the procedure laid down in office memorandum No. F.33/13/61- Ests (A), dated 23rd June, 1969, of the Ministry of Home

Affairs, Government of India. It is however the grievance of the appellant that her premature retirement was not made in

accordance with the requirements of the rule and the memorandum, but was ordered because of malice, and was

arbitrary and capricious as the Government did not apply its mind to her service record and the facts and circumstances

of her case. It has been speci

205

fically pleaded that the power under F.R. 56(j)(i) has not been exercised "for the furtherance of public interest" and has

been based on "collateral grounds". The appellant has pointed out in this connection that her service record was

examined in March, 1976, by the Departmental Promotion Committee, with which the Union Public Service Commission

was associated, and the Committee considered her fit for promotion to the selection grade subject to clearance in the

departmental proceedings which were pending against her, and that she was retired because of bias and animosity. Our

attention has also been invited to the favourable entry which was made in her confidential report by the Secretary of the

Ministry.

Mr. Lekhi, learned counsel for the Union of India, produced the, relevant record of the appellant for our perusal. While

doing so he frankly conceded that there was nothing on the record which could justify the order of the appellant's

premature retirement. He went to the extent of saying that the Government was not in a position to support that unfair

order.

We have made a mention of the plea of malice which the appellant had taken in her writ petition. Although she made an

allegation of malice against V. D. Vyas under whom she served for a very short period and got an adverse report, there is

nothing on the record to show that Vyas was able to influence the Central Government in making the order of premature

retirement dated March 26, 1976. It is not therefore the case of the appellant that there was actual malicious intention on

the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice

in fact. Malice in law IS, however, quite different. Viscount Haldane described it as follows in Shearer and another v.

Shield,(1)

'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." 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.

It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary

power has been exercised for an unauthorised purpose, it is generally immaterial whether (1) [1914] A.C. 808 at p. 813.

206

its repository was acting in good faith or in bad faith. As was stated by Lord Goddard C.J., in Pilling v. Abergele Urban

District Council(1), 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." The principle which is applicable in such cases

has thus been stated by Lord Esher M.R. in The Queen on the Prosecution of Richard West brook v. The Vestry of St.

Paneras(2). "

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." This view has been followed in Sedlar v. Sheffield Corporation.(3)

We are in agreement with this view. 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 nonexisting 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.

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 raust therefore be held to be infected with an

abuse of power. So when it has been conceded by Mr. Lekhi that there was nothing on the record which would justify the

impugned order dated March 26, 1976, of the appellant's premature retirement under clause (j) (i) of

(1) [1950] 1 K.B. 636.

(2) 24 Q.B.D. 371 at p. 375.

(3) [1924] 1 Ch 483.

207

Rule 56 of the Fundamental Rules, and that the Government was not in a position to support that unfair order, that order

must be set aside, for it amounts to an abuse of the power which was vested in the authority concerned. The appeal is

allowed with costs and it is ordered accordingly. N.V.K, Appeal allowed.

208

SMT. S. R. VENKATARAMAN Vs. UNION OF INDIA & ANR.Coram

SHINGAL, P.N.

Citation

1979 AIR 49, 1979( 2 )SCR 202, 1979( 2 )SCC 491, ,

Head Notes

The appellant who was working as Joint Director, Family Planning in the Directorate-General of the All India Radio was prematurely retired from ser vice. She made a representation, but it was rejected. In her writ petition under Art. 226 of the Constitution she alleged that she had a long and clean record of nearly three decades but that baseless allegations had been made against her, because of malicious vendetta of the then Chairman of the Central Board of Film Censors. She also alleged that the impugned order was arbitrary and capricious and that the retiring authority had not applied its mind to the record of her case. The writ petition was dismissed in limine. On the appeal, the first respondent conceded that there was nothing on the record to justify the impugned order, and that the Government was not in a position to support that unfair order. Allowing the appeal, ^ HELD: (1) There was nothing on the record to show that the Chairman of the Central Board of Film Censors was able to influence tho Central Government m making the impugned order. It was not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order so as to amount to malice in fact. [205E] (2) 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. [205G] . Shearer & Anr. v. Shields, [1914] A.C. 508 at p. 813 referred to. (3) It was not necessary to examine the question of malice in law as it was trite law that if a discretionary power had been exercised for an unauthorised purpose, it was generally immaterial whether its repository was acting in good faith or in bad faith. [205H-206A] 203 Pilling v. Abergele Urban District Council. [1950] 1 K.B. 636: referred to. (4) The principle which is applicable in such cases is that laid down by Lord Esher M.R. in 24 Q.B.D. 371 at p. 375, and followed in (1924) 1 Ch. 48 3. [206C-D] (5) When a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance it will be an error of fact. That is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith. [206E] (6) When the respondent conceded that there was nothing on record to justify the impugned order, that order must be set aside for it amounts to an abuse of the power which was vested in the authority concerned as it had admitted the influence of extraneous matter. [206H-207A] (7) It will 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. [206F] (8) An administrative order which is based on reasons of fact which do not exist must be held to be infected with abuse of power. [206G]Subject

Fundamental Rules-Rule 56(j) (i)-order of Compulsory retirement in 'public interst'-Nothing on record to justify the order -Order if should be set aside. Administrative Law-Administrative action-An abuse of power-What is- order based on non-existing fact-Effect of. Words and Phrases- 'Malice in fact' and 'Malice in law'-Explained and distinguished.Judgment

PETITIONER: SMT. S. R. VENKATARAMAN Vs. RESPONDENT: UNION OF INDIA & ANR. DATE OF JUDGMENT02/11/1978 BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. REDDY, O. CHINNAPPA (J) CITATION: 1979 AIR 49 1979 SCR (2) 202 1979 SCC (2) 491 CITATOR INFO : D 1980 SC 563 (26) E&D 1991 SC 818 (25) ACT: Fundamental Rules-Rule 56(j) (i)-order of Compulsory retirement in 'public interst'-Nothing on record to justify the order -Order if should be set aside. Administrative Law-Administrative action-An abuse of power-What is- order based on non-existing fact-Effect of. Words and Phrases- 'Malice in fact' and 'Malice in law'-Explained and distinguished. HEADNOTE: The appellant who was working as Joint Director, Family Planning in the Directorate-General of the All India Radio was prematurely retired from ser vice. She made a representation, but it was rejected. In her writ petition under Art. 226 of the Constitution she alleged that she had a long and clean record of nearly three decades but that baseless allegations had been made against her, because of malicious vendetta of the then Chairman of the Central Board of Film Censors. She also alleged that the impugned order was arbitrary and capricious and that the retiring authority had not applied its mind to the record of her case. The writ petition was dismissed in limine. On the appeal, the first respondent conceded that there was nothing on the record to justify the impugned order, and that the Government was not in a position to support that unfair order. Allowing the appeal, ^ HELD: (1) There was nothing on the record to show that the Chairman of the Central Board of Film Censors was able to influence tho Central Government m making the impugned order. It was not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order so as to amount to malice in fact. [205E] (2) 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. [205G] . Shearer & Anr. v. Shields, [1914] A.C. 508 at p. 813 referred to. (3) It was not necessary to examine the question of malice in law as it was trite law that if a discretionary power had been exercised for an unauthorised purpose, it was generally immaterial whether its repository was acting in good faith or in bad faith. [205H-206A] 203 Pilling v. Abergele Urban District Council. [1950] 1 K.B. 636: referred to. (4) The principle which is applicable in such cases is that laid down by Lord Esher M.R. in 24 Q.B.D. 371 at p. 375, and followed in (1924) 1 Ch. 48 3. [206C-D] (5) When a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance it will be an error of fact. That is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith. [206E] (6) When the respondent conceded that there was nothing on record to justify the impugned order, that order must be set aside for it amounts to an abuse of the power which was vested in the authority concerned as it had admitted the influence of extraneous matter. [206H-207A] (7) It will 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. [206F] (8) An administrative order which is based on reasons of fact which do not exist must be held to be infected with abuse of power. [206G]