Punitive or Mala Fide Action in Indian Public Law

Punitive or Mala Fide Action: Doctrinal Boundaries and Judicial Control in Indian Public Law

Introduction

Indian courts have long distinguished between State actions that are punitive—imposing a lawful penalty for proved misconduct—and those that are mala fide, viz. motivated by bad-faith considerations or deployed for a purpose alien to the enabling power. While both categories invite judicial scrutiny, the standard and intensity of review differ markedly. This article interrogates the conceptual divide, traces the evolution of controlling tests, and analyses leading precedents across service, administrative, industrial and constitutional domains.

Conceptual Framework

(A) Punitive Action

A measure is punitive when it carries “the evil consequences of penalty” (Air-India Corporation v. Rebellow, 1972)[1]. Such action is not per se unlawful; its validity depends on adherence to substantive and procedural guarantees—e.g., Article 311 or natural justice in labour jurisprudence.

(B) Mala Fide Action

Malice in fact denotes personal spite or ill-will; malice in law (legal malice) refers to a deliberate exercise of power for an improper or foreign purpose, even absent personal animus (Ramjit Singh Kardam, 2020)[2]. Viscount Haldane’s formulation—“a wrongful act intentionally, but without just cause or excuse”[3]—remains the lodestar. Where malice in law is proved, the action is void ab initio.

Judicial Standards of Review

  1. Burden of proof. The claimant must establish bad faith by “cogent and unimpeachable evidence” (Dr. Budhikota Subbarao, 1993)[4].
  2. Nature of power. Courts adopt strict scrutiny where power affects fundamental rights (Indian Express Newspapers, 1985)[5], but show deference in routine administrative transfers unless mala fides or statutory infraction is shown (State of U.P. v. Gobardhan Lal, 2004)[6].
  3. Form v. substance. Labels such as “termination simpliciter” are disregarded; substance prevails (Tata Engineering v. S.C. Prasad, 1969)[7].
  4. Dominant purpose test. Where mixed motives exist, the Court isolates the dominant purpose (Pratap Singh v. State of Punjab, 1964)[8].

Service Jurisprudence: Transfers, Retirement and Repatriation

1. Transfers

  • Executive discretion & limits. Gobardhan Lal reaffirmed that transfer is an incidence of service; judicial interference lies only upon proof of mala fides, violation of a statutory rule, or manifest arbitrariness.
  • Punitive transfer. In Somesh Tiwari v. Union of India (2008) the Court quashed a transfer order imposed “as a measure of punishment” without evidence, branding it arbitrary and violative of Articles 14 & 16.
  • Frequent or colourable transfers. High Courts have treated repetitive, unjustified transfers as mala fide (Gayatri Devi v. State of U.P., 1997)[9].

2. Premature Retirement

In S.R. Venkataraman (1979) absence of any supporting material rendered the retirement an “abuse of power”, illustrating malice in law under Fundamental Rule 56(j).

3. Repatriation of Deputationists

The Central Administrative Tribunal in G.I. Singh (1989) held that innocuous repatriation, absent stigma, is not punitive; nor was bad faith shown. The case underscores that conjecture cannot substitute evidence.

Discretionary Powers and Mala Fide Exercise

Land Acquisition

State of Punjab v. Gurdial Singh (1979) invalidated repeated acquisition attempts as “fraud on power”, emphasising that emergency powers under §17 of the Land Acquisition Act, 1894, cannot mask personal vendetta.

Corporate Investigations

In Barium Chemicals (1966) the Supreme Court struck down an investigation ordered under §237(b) of the Companies Act, 1956, because the subjective opinion was founded on irrelevant considerations—classic mala fide in law.

Statutory Discretion in Employment

U.P. SRTC v. Mohd. Ismail (1991) clarified that while Regulation 17(3) confers discretion to grant alternative employment, failure to exercise it does not per se prove bad faith; discretion must however be “according to reason and justice”.

Constitutional Safeguards & Article 311

Union of India v. Tulsiram Patel (1985) illustrates that even punitive dismissal without inquiry is permissible under the proviso to Article 311(2), provided the pre-conditions exist; absence of inquiry does not amount to mala fides when constitutional text authorises such departure.

Punitive v. Mala Fide in Labour & Industrial Law

Under §33 & §33-A of the Industrial Disputes Act, an order of discharge during pendency of proceedings is illegal if punitive or mala fide (Air-India, 1972; General Industrial Society, 1978). The tribunal’s competence extends to piercing the veil of “discharge simpliciter” where victimisation is alleged.

Doctrinal Synthesis

  1. Punitive action is tested for procedural propriety (natural justice, statutory compliance).
    Mala fide action attacks the very jurisdiction; no quantity of procedure can cure it.
  2. Proof of malice in fact is rare; courts more often infer malice in law from:
    • exercise for an alien purpose,
    • consideration of irrelevant factors,
    • non-consideration of relevant factors,
    • manifestly disproportionate consequences.
  3. Labelled neutrality (e.g., “administrative”, “in public interest”) does not immunise action; courts examine contemporaneous record (E.P. Royappa, 1974).
  4. Yet, mere error or even harshness does not equal bad faith; constitutional culture presumes regularity of official acts (P.P. Sharma, 1992).

Emerging Trends

  • Heightened transparency. RTI-era decisions (Smt. Rajinder Kaur v. Punjab & Sind Bank, 2024) illustrate that concealment of reasons may itself suggest colourable motive.
  • Data-driven transfers. Digital posting portals reduce discretion but create new grounds for algorithmic bias; guiding principles in Gobardhan Lal remain relevant.
  • Intersection with proportionality. Post-Maneka Gandhi jurisprudence increasingly blends malice analysis with proportionality, especially where fundamental rights overlap with regulatory objectives (Indian Express, 1985).

Conclusion

Indian public law responds differently to punitive and mala fide State actions. The former is curable by compliance; the latter strikes at the root. From Barium Chemicals to Somesh Tiwari, courts insist that power be exercised bona fide, for the purpose for which it is conferred, and with scrupulous fairness. Future litigation—spanning algorithmic governance, mass transfers, and discretionary taxation—will further test these doctrinal boundaries, but the foundational principles articulated in the cited cases provide a robust compass for adjudication.

Footnotes

  1. Air-India Corporation, Bombay v. V.A. Rebellow, (1972) 1 SCC 814.
  2. Ramjit Singh Kardam v. Sanjeev Kumar, (2020) 14 SCC 371.
  3. The Registrar, High Court v. A.K. Vasudevan, 1995 (2) MLJ 549 (Mad).
  4. State of Maharashtra v. Dr. Budhikota Subbarao, (1993) 3 SCC 339.
  5. Indian Express Newspapers (Bombay) (P) Ltd v. Union of India, (1985) 1 SCC 641.
  6. State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402.
  7. Tata Engineering & Locomotive Co. v. S.C. Prasad, (1969) 3 SCC 372.
  8. Pratap Singh v. State of Punjab, AIR 1964 SC 72.
  9. Gayatri Devi v. State of U.P., 1997 (3) ESC 1706 (All).