S. B. SINHA, C. J.

( 1 ) THE applicant before the Tribunal is the writ petitioner. Facts:

( 2 ) THE petitioner was working as a group D employee in Kendriya Vidyalaya sangatan, Gooty. When a charge memo alleging misconduct was served upon him, he submitted his explanation on 7-7-1999 and on the same day he had also submitted a letter of resignation which was accepted. Even the two representations dated 10-7-1999 and 21-7-1999 seeking to withdraw the said letter of resignation were refused, he filed the Original Application no. 1625 of 1999 before the Central administrative Tribunal inter alia also making allegations against the 3rd respondent.

( 3 ) THE learned Tribunal by reason of the impugned order inter alia held: from the material on record it is clear that respondent No. 2 has taken not of the allegations made by the applicant against the principal, Kendriya Vidyalaya Sangatan, respondent No. 3. He has also taken note of the rule position as also the withdrawal of the resignation requested by the applicant.

( 4 ) MS. T. Bala Jayasree, the learned Counsel appearing on behalf of the petitioner, raised various contentions in support of this writ petition. The learned counsel would submit that having regard to the fact that the resignation was accepted without waiting for the expiry of the notice period is clearly indicative of the fact that the resignation was not a voluntary one. Strong reliance in this connection has been placed on P. Kasilingam v. P. S. G. College of Technology, 1981 (1) SLR 307 (SC ). It was further submitted that even in relation to the temporary employees 30 days notice is mandatory in nature and as the requirement of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 had not been complied with, the impugned order cannot be sustained. It was urged that the order of termination was passed mala fide at the instance of the 3rd respondent herein.

( 5 ) ADVERTING to the question raised in this petition we may notice that before the learned Tribunal the Commissioner, Assistant commissioner and the Principal of the kendriya Vidyalaya in their official capacities were impleaded as parties. In the writ petition, however, the Principal has not been impleaded in his offical capacity but in his personal capacity. The 3rd respondent before the Tribunal, therefore, is not before us. On that ground alone this writ petition is not maintainable. We may further deprecate the practice of impleading the respondent in his personal capacity for the first in the writ petition only with a view that the allegation of mala fide can be pressed although he had not been impleaded as such in the original application. The allegation of personal malice, it is trite, cannot be permitted to be raised in absence of the person against whom it is attributed. An allegation of malice on fact can be gone into and determined only in the presence of the person against whom such malice is attributed and not otherwise. It is now well settled that malice has to be pleaded and proved by cogent material evidence. (See vijayawada Municipality v. A. P. S. E. Board, air 1977 SC 87, Kedar Nath v. State of punjab, AIR 1979 SC 220, Keshab Roy v. State of W. B. , (1973) 3 SCC 216 ). It is also interesting to note that in Regional Manager v. Pawan Kumar Dubey, (1976) 3 SCC 334 = AIR 1976 SC 1766 = 1976 Lab IC 1146, the Apex Court has held that normally question of malice may not be gone into in a writ proceeding. If malice in law is urged the matter may be different.

( 6 ) IN Prabodh Sagar v. Punjab State electricity Board, (2000) 5 SCC 630, the apex Court held: 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. We

Click Here to Read the rest of this document