2006 Supreme(SC) 374

2006(5) Supreme 92
SUPREME COURT OF INDIA
(From Jharkhand High Court)
Ruma Pal & C.K. Thakker, JJ.
Purushottam Kumar Jha — Appellant
versus
State of Jharkhand & Ors. — Respondents
Civil Appeal No. 2234 of 2006
(Arising out of Special Leave Petition (Civil) No. 4800 of 2004)
Decided on 24-4-2006
Counsel for the Parties :
For the Petitioner : In-Person.
For the Respondents : Ashok Mathur, Anup Banerjee, B.B. Singh, (NP), Advocates.

IMPORTANT POINTS
1. When the appointment of an employee was as clerk, he could be asked to discharge duties in clerical capacity.
2. It is well settled that whenever allegations as to malafides have been leveled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings.

Headnote:SERVICE LAW — Bihar Reorganisation Act, 2000 — Sections 72 and 74 — Compulsory Retirement — Appointment as Field Clerk on compassionate ground following death of father — Appellant was transferred in the office of Registrar, Cooperative Societies and deputed for monitoring legal work — Appellant was practising Advocate before joining the service — On bifurcation of State of Bihar, appellant was provisionally transferred to the State of Jharkhand — Appellant’s case that he was illegally described as clerk, though all throughout he had worked as Law Officer and Legal Assistant from the date of joining — Writ petition filed by appellant for directions to reconsider his case and to re-transfer him to State of Bihar — Order of compulsory retirement from service was passed against appellant — Whether High Court was justified in holding that when appointment of appellant was as clerk, he could be asked to discharge duties in clerical capacity — (Yes) — Whether order of compulsorily retiring the appellant from services was legally sustainable — (Yes).

       Held : On the basis of evidence, we are of the view that it cannot be said that by taking the action of compulsorily retiring the appellant from services, the respondents had committed any illegality. If, considering the material on record, it was held that the charges leveled against the appellant as to (i) indiscipline and non-compliance and disobedience of the orders of higher officials; and (ii) levelling baseless and uncalled for allegations against superior officers were proved and an order of compulsory retirement had been passed against him, to us, the said action cannot be declared illegal, arbitrary or objectionable.(Para 20)

       The learned Single Judge as well as the Division Bench had held that the appellant was appointed as Clerk on compassionate ground and not Law Officer/Legal Assistant. From the affidavits filed on behalf of respondents, it is clear that there is no sanctioned post of Law Officer/Legal Assistant and Clerks use to get information relating to pending cases of the Department in the High Court and other persons had also worked in that capacity. The High Court was, therefore, in our opinion, justified in holding that the appellant could not have claimed designation as Law Officer/Legal Assistant. So far as the State of Jharkhand is concerned, in our view, the Division Bench was right in holding that under the Act, his services could be allotted to the State of Jharkhand and that action was taken at the instance of Advisory Committee. The said action was not in contravention of any provision of the Act and proceedings initiated by the State of Jharkhand could not, therefore, be objected.(Para 21)

       As to mala-fide exercise of power, the High Court held that neither sufficient particulars were placed on record nor the officers were joined as party respondents so as to enable them to make the position clear by filing a counter affidavit. In the absence of specific materials and in absence of officers, the Court was right in not upholding the contention that the action was mala-fide.(Para 22)

       It is well settled that whenever allegations as to mala fides have been leveled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was mala fide and malicious is not enough. In absence of material particulars, the court is not expected to make ‘fishing’ inquiry into the matter. It is equally well-established and needs no authority that the burden of proving mala fides is on the person making the allegations and such burden is ‘very heavy’. Malice cannot be inferred or assumed. It has to be remembered that such a charge can easily be ‘made than made out’ and hence it is necessary for courts to examine it with extreme care, caution and circumspection. It has been rightly described as ‘the last refuge of a losing litigant’.(Para 23)

       In the instant case, the allegations are vague, general and casual. No particulars, much less sufficient particulars have been placed on record. The High Court considered the contention in the light of settled legal position and rejected the argument put forward by the appellant. We see no infirmity in the reasoning of the High Court. The conclusion arrived at by the High Court deserves no interference.(Para 24)