Ajoy Nath Ray, J.:— This is an appeal from a decree preferred by the only defendant against whom the decree was passed. The other defendants being its officers and newspapers were exonerated.
2. The case raises an important, interesting and a fresh point of law. The point is this. If a disciplinary enquiry against an officer of the State or other authority is pursued and pressed, but ultimately results in a complete discharge of the employee chargesheeted, and further, the enquiry is shown to have been initiated and conducted without any just or reasonable cause, and it is even shown to be an abuse of power, can the employee, after the conclusion of the departmental proceedings in his favour, file a civil suit for recovery of damages?
3. The facts in this case, as are material for the determination of the above legal points are short and simple. The respondent/plaintiff had an unblemished service career in the West Bengal State Electricity Board until 1985. He had about four years then left of his service. He was put in supervision of a certain Gas Turbine Project which was then undertaken by the Board in Calcutta. The project was completed in time. There was a certain appreciation of such timely completion even in the Governmental circles.
4. Although the respondent was expecting promotion, he after some preliminaries, received a chargesheet under several counts in 1985. Although an order of suspension was initially issued, the chargesheet not being forwarded within the stipulated period of one month, the respondent moved Court in a writ, and after an order was passed, the chargesheet was issued.
5. During the proceedings in the department also, a second writ had to be filed, inter alia, for the purposes of inspection and expedition.
6. The disciplinary authority found against the plaintiff. A second show cause was issued, inviting comments on the proposed penalties. Thereafter three penalties were imposed.
7. No serious charge of defalcation or dishonesty was proved against the plaintiff. Hardly any charge of moral turpitude or serious financial irregularity was levelled against the respondent either.
8. The three penalties were ultimately imposed.
9. The respondent filed a third writ this time. On the 9 February, 1989 in a long and reasoned judgment the Hon'ble Sri Justice Ajit Kumar Sengupta (as His Lordship then was) upheld almost all the contentions of the writ petitioner/plaintiff and quashed the entirety of the disciplinary proceedings from the show cause to the imposition of penalty.
10. The respondent was due to retire on 28 February 1989. He rejoined service as per the Court's decision for two days prior thereto. All arrear pay during the period of suspension was released to him and all retiral benefits.
11. The judgment and order of Justice Sengupta was accepted by both the parties and has thus become binding.
12. His Lordship held, inter alia, to the following effect, the disciplinary proceeding affected the livelihood of the petitioner and cast a stigma; the proposed punishment in the second show-cause notice was unwarranted, uncalled for and no punishment could be inflicted upon the petitioner. The disciplinary authority while issuing the chargesheet had prejudged the matter, had a closed mind and a biased attitude towards the petitioner. The findings arrived at were contrary to all canons of justice and fair play. The findings not only affected the reputation of the petitioner but also visited him with serious civil and pecuniary consequences. The case did not at all warrant the suspension or the issuance of the chargesheet. The findings of the enquiry officer were vitiated as being perverse. The disciplinary authority agreed with the perverse findings of the enquiry officer and did not apply his own mind independently.
13. The said judgment was no doubt relied upon by the learned Judge decreeing the suit. He held that it was highly probable that the plaintiff was suspended for extraneous reasons. The omission of the Board in several matters, including issuance of the chargesheet in time was held to indicate the defendant Board's motive to harass the plaintiff. He held that the charges were proved to be false and that the defendant Board had motive to harass the plaintiff. It was held that his prestige had been lowered. Technically, it was said, that the plaintiff was not entitled to damages for defamation. Nonetheless it was held that he was entitled to Rs. 50,000 for loss of reputation. It was remarked that only a high power enquiry could reveal who actually were the officers of the defendant Board who abused the power vested in them to put the plaintiff in trouble.
14. Costs of Rs. 50,000 at least was held to have been incurred by the plaintiff for pursuing his three writs. A sum of Rs. 50,000 was awarded on the ground of harassment. Another sum of Rs. 50,000 was awarded for loss of reputation. A decree was passed for Rs. 1,00,000, the balance of the total claim of Rs. 5 lakh made by the plaintiff being rejected.
15. There is no cross-appeal by the plaintiff.
16. Sri Roy appearing for the appellant submitted that the learned Judge wrongly held that Justice Sengupta had said that the charges against the plaintiff were false. This submission is quite right. However, the legal proposition which we are enquiring into, does not require that the charges be pronounced upon as false by any competent authority; it is enough if the proceeding ends wholly in favour of the plaintiff and that happened in this case. The next problem about the judgment on appeal is that Rs. 50,000 was awarded for loss of reputation, and yet it was held that technically there is no defamation. We are of the opinion that the newspapers, being exonerated from the charges of defamation along 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. The correct reading of the impugned judgment is that the defendants other than the Board are not technically liable for defamation, as they have the defence of truth, but that the Board is liable for loss of reputation.
17. This small problem removed out of the way, there remains the big question (not monetarily, but from the point of view of principle) whether a suit of this nature at all lies after a successful writ. The first reaction to this type of a suit would no doubt be, that allowing such complaints to succeed would greatly increase litigation in the suit Court. That several successful employees of a State or other authority, who nave been unsuccessfully proceeded against in departmental enquiries as a matter of course, would approach the ordinary Courts of law thereafter, claiming damages.
18. The argument on the other side, however, is this; as the law now stand, a Government servant or an employee of an authority like the Board can be suspended at will by the employer and proceeded against departmentally. Unless the action is proved to have been taken by any particular individual mala fide or dishonestly, the enquiring officers and the senior officers are protected by the law and usually also by the concerned Departmental Rules. If the employee is shown to have been proceeded against wrongfully, he can, after successful completion of the proceedings which might take months or years, get back all his arrear pay and seniority. But is this a true recompense of all that has 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 that their father is innocent but has been proceeded against wrongfully; he will answer at all social gatherings sympathetic questions about the stage of the disciplinary enquiry; he will remain in constant tension for four years about what is going to happen to his livelihood in the end; his tension will be shared by his wife and family; for four years he will stay home, hands on his lap. When he gets back all his money and rejoins service, these four years will not be returned to him. In these four years he has no doubt suffered mental anguish, harassment and humiliation.
19. These things will not be wiped away when he gets back his arrear pay or seniority. Therefore, runs the argument, why should an appropriate suit not lie in appropriate cases where an employee has come under the heavy hand and the unfair heavy hand of his State employee?
20. Sri Roy for the appellant relied very correctly on the recent House of Lords case of Gregory v. Portsmouth City Council, reported at 2000 Vol. I of All England Law Reports, page 560.
21. In that case, the appellant Sri Gregory, who was a Councillor was proceeded against pursuant to recommendations of an Administrative Sub-Committee of the Council. On the basis of the recommendations, the Sub-committee removed him from the committees of which he was a member. An action for judicial review initiated by Gregory succeeded and the proceedings against him were quashed on the ground that the Administrative Subcommittee had acted ultra vires; accordingly the subsequent action by the Sub-committee had not legs to stand upon either. He was sought be proceeded against departmentally once again but the proceedings were dropped, perhaps because Gregory was convicted in the meantime of two counts involving dishonesty which caused him to be sentenced to three months' imprisonment. The criminal prosecution was uncorrected with the departmental charges.
22. The question before the House was, whether Gregory could recover in a suit for malicious prosecution against the Council. The action of Gregory was ordered to be struck out by the District Judge and an appeal from the District Judge's order was dismissed by a Single Judge. The Court of Appeal also held, with one dissenting judgment, that the tort of malicious prosecution was not available for proceedings in the department of administrative boards.
23. The House of Lords upheld the said view.
24. Before examining this case any further, it is important to bear in mind that we are not dealing with the service incident of a private employer or employee that is governed by the law of contract, in general. But for State employees or the likes of them, service partakes a character both of contract and status. The service of an employee of this nature cannot be affected excepting by proceedings under some sort of rule or law.
25. The appellant's Service Rules and Regulations also have the force of law. If those are invoked, and those are invoked without just or fair cause, the question arises whether a tort is committed by the persons in power who commence unfairly such departmental machinery to start running; if such persons cannot be exactly identified, but the tort is proved, the damages must be paid by the employer itself who represents its whole body of employees in these matters.
26. To come back to the English case. The House of Lords opined that in England the tort of malicious prosecution is only available in cases of criminal prosecutions and certain very limited types of civil proceedings, like malicious presentation of a winding up petition or a petition in bankruptcy; procurement of a search warrant without reasonable cause and with malice; commencement execution proceedings without reasonable cause; and causing a malicious arrest of a ship.
27. The House held that the three torts of defamation, of malicious falsehood and of conspiracy, were a sufficient remedy for a person like Gregory who was wronged in departmental proceedings, Gregory's appeal was, therefore, dismissed. With the greatest respect, the tort of malicious prosecution as is not exactly any of the three mentioned torts; in, say, a departmental proceeding where a mountain is sought to be made out of a molehill, there be impossible to prove; even then the proceeding might be oppressively unjust and unfair. Would the tort of malicious prosecution be available? Again with respect, a direct answer is needed to this question.
28. However, the judgment notes that the law in the United States is absolutely different. There the law of malicious prosecution extends both to all civil proceedings and before the administrative boards. Several reputed authors also have written in favour of extension of the tort to proceedings before administrative boards.
29. The following passage from the judgment delivered by Lord Steyn shows this other point of view:
“…counsel submitted that the existing boundaries of the tort fail a test of rationality. He adopted the following passage in Salmond and Heuston on the Law of Torts (21st edn., 1996) page 393:
“…there seems to be no reason why an action should not lie for the institution of unfounded and malicious proceedings before a Court-martial, or some administrative or domestic Tribunal. The adverse decision of such a body may cause serious damage to the reputation or livelihood of the party accused.”
30. Counsel also cited other academic criticism of the existing law: See Fleming pages 675–676 and Winfield and Jolowica on Tort (14th edn., 1994) pages 581-582, He argued that it would be better not to concentrate on types of proceedings in which groundless allegations are made but rather on the fact of malicious and unwarranted abuse of any proceedings resulting in serious damage to an individual. In support of the feasibility of such a development he drew attention to the development of the tort of malicious prosecution in the United States as described in the American Law Institute, Restatement of the Law, Torts 2d (1977). S. 674, p. 452, extends the tort to all civil proceedings. It reads as follows:
‘One who takes an active part in the institution, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if—
(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based; and
(b) except when they are ex parte, the proceedings have terminated in favour of the person against whom they are brought.’
Section 680, p. 468, extends the tort to proceedings before administrative boards. It reads as follows:
‘One who takes an active part in the initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other, is subject to liability for any special harm caused thereby, if
(a) he acts without probable cause to believe that the charge or claim on which the proceedings are based may be well founded, and primarily for a purpose other than that of securing appropriate action by the board; and
(b) except where they are ex parte, the proceedings have terminated in favour of the person against whom they are brought.’
31. Sri Ghosh appearing for the respondent submitted that the ingredients of defamation basically are that the injured person must by reason of the complained acts be made an object of hatred, contempt or ridicule. The following passage was relied upon from the book called Law of Damages by A.I Ogus, a 1973 Butterworths publication;
“The dogma of defamation has it that the defendant's statement should expose the plaintiff to hatred, contempt or ridicule and the Law holds it to be a valuable asset that a man should be held in esteem by others. The first type of loss, therefore, depends on nothing which happens to the plaintiff himself but on how others react to the tort, A paradigm case is Cook v. Ward.
P was represented by D in a local newspaper as a hangman. At a parish meeting which he attended in his capacity as the Assistant Overseer of the parish, P was made the object of a joke which played on his being represented as a hangman, Evidence of P being subjected to the humiliation of a general roar of laughter was admitted as being relevant to the issue of damages.”
32. 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 the English Courts on the basis of the law prevailing in England do not extend to the Indian Courts. Just as a criminal case puts the heavy machinery of the law against an accused, so does a disciplinary proceeding put the heavy machinery of a State or other authority against the person accused of service offence. If the State employer is unable to show that there was any reasonable cause or justification for the proceedings, if the findings are found at certain stages to have been even perverse, then and in that event, the technical conclusion is, that the employee has been made the victim of a proceeding, the cause for which was not a genuine inquiry into the conduct of the petitioner. What the other extraneous cause was, if any, would be for the employee to allege and the employer to show as non-existent. If no cause is shown, the Court is compelled to conclude that the cause was extraneous and not worth bringing out into the open public scrutiny. The present trend of the law is to allow a remedy if a wrong has been committed. On that principle also, the plaintiffs suit should lie.
33. That there might be morecases in the Law Courts is no argument for discouraging even good ones, where there is a just and good cause to claim money. Further, a remedy of this nature would be a deterrent against any superior officer or group of officers seeking to wreak a vengeance upon their subordinate, in the safe of their knowledge that whatever they do, they cannot be proceeded against. If a suit might be filed later on for their doings, they would think twice before commencement of their unfair action. That would be a more democratic situation.
34. We, thus, uphold the award of Rs. 50,000 as damages granted for harassment, which we read as damages for malicious prosecution, causing harassment by way of mental pain etc.
35. The award of Rs. 50,000 for loss of reputation is also upheld. We have no doubt that this loss of reputation certainly occurs if a departmental proceeding is commenced unfairly and without any just cause.
36. The assessments of round figures are not unreasonable and these assessments have to be made on a rough and ready basis, as exact calculation is not possible. The test is of reasonableness and not arithmetic.
37. In these circumstances, the appeal is dismissed with costs.
38. All monies deposited in the Trial Court along with the accrued interest to be handed over to the plaintiff or his authorised representative.
Tapan Kr. Dutt, J.:— I agree.
Appeal dismissed with costs.
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