(1) The reference of two questions which will presently stated, on the Full Bench, has been made in these Circumstances. Two persons Surinder Nath Uttam and Ram Sarup were holding temporary posts in the Estate Office Chandigrarh of a Cashier and an Accountant, respectively. On 4th April, 1959, their services were terminated. At that time Surinder Nath Uttam has put in 13 years of service whereas Ram Sarup had been in service for a period of 15 years. They filed writ petitioners under Article 226 of the Constitution which were dismissed by a learned Single Judge on 25th January 1963. They filed appeals under Clause 10 of the Letters Patent which came up before a Bench for hearing.
(2) In view of the Allegations contained in the petitioners as also the observations made by the learned Single Judge on which an argument was raised on behalf of the appellants that the action taken by the Government was not bona fide and was actuated by mala fides the Bench has referred the following two questions for decision by the Full Bench:--
'(1) Whether, when an allegation is made that a particular order or decisions is mala fide and the allegations is denied this court is bound to enquiry into the question of fact raised by the pleas; and
(2) Whether the disputed fact should be settled on the pleas as they stand in the light of affidavits of the parties, or, whether the Court should inform the parties of its intention to fully investigation the fact and only then decide the question.?'
It appears that the Bench considered it desirable that an authoritative view may be expressed on the correct procedure to adopted not only in peptones arising out of service matters but also touching various other decisions made by Government al or statutory authorities where allegations of mala fides are made.
(3) It may be mentioned at the outset that the arguments before the Full Bench were confined mainly to matters arising out of orders made with regard to Government servants holding temporary posts but on principle there does not appear to any distinction between cases of that category and other cases where orders are attached or challenged by petitioners under Article 226 on the ground of mala fides or lack of bona fides or bad faith on the part of authorities making those orders.
(4) It is apparent form the order of reference that Mr. Abnasha Singh learned counsel for the appellants sought of canvas not only the question whether the orders terminating their services had been made by way of punishment but also that they had been prompted by bad faith on the part of certain officers, who were actuated by factious reasons or motives. The first difficult which the Bench appeared to have felt, was whether motive would be a relevant factor in the matter of termination of service of a Government servant holding a temporary post. In Parshotam Lal Dhingra V. Union of Indian AIR 1958 SC 36, S. R. Das, C. J., Analysed the position with regard to such servants in paragraph 28 thus:
(1) A termination of service brought about by the exercise of a contractual right is not per separate dismissal or removal.
(2) Likewise, the termination of service of compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment.
(3) Misconduct, negligence, inefficiency or the disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rules to terminate the services the motive operating on the mind of the Government is wholly irrelevant.
(4) But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may choose to punish the servant and if it is sought to be founded on misconduct, negligence, inefficiency, or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with.
The learned Chief Justice apparently accorded approval to what Chagla C. J., had said in Shrinivas Ganesh v. Union of India (S) AIR 1956 Bom 455, in the following passage--
'Whenever may be the motive which may influence the exercise of a legal right if the legal right exists then the motive becomes irrelevant and if in case where, S. 240(3) or Art. 311 does not apply the Government has the right to dispense with the services of a temporary servant then it is not open to a temporary servant then it is not open dispensed with for an ulterior motive or for a motive which was not a proper motive.'
(5) In a very recent decision in Jagdish Mitter v. Union of India, AIR 1964 SC 449 there is a good deal of discussion of the above aspect of the matter in which previous cases were also reviewed. After inferring to Parsotam Lal Dhingra's case, AIR 1958 SC 36 and the law laid down therein by S. R. Das C. J. Gajendragadkar J. (As he then was) made a distinction between cases, in which enquiry, which ultimately leads to the discharge of a temporary servant, is held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised an he should be discharged, and other cases where the authority may formal departmental enquiry. In the former set of cases the requirements of S. 240(3) of the Government of Indian Act or Art 311(2) of the constitution would not be attracted. But in the latter type of cases, prima facie, the termination would amount to dismissal of the temporary servant with the result that the requirements of the aforesaid provision would become applicable. It was then emphasised that since considerations of motive operating in the mind of the authority have to be eliminated in determining the character of the termination of services of a temporary servant, the form, in which the order terminating his services is expressed, will not be decisive. It is the substance of the matter which determines the character of such an order.
After referring to other decisions it was held that the enquiry which had been made against Jagdish Mitter was one only of a preliminary nature, and not with a view to taking disciplinary action against him, and that the order of discharge, which was ultimately passed, did not flow from the findings made in that inquiry, But in view of the language used in the order of discharge, which caste a stigma on the servant, the order was held to be one of dismissal and as the requirements of S. 240(3) of the Government of India Act had been followed, the order of discharge was set aside.
(6) It would, therefore, appear that the rule laid down in Parshotam Lal Dhingra's case, AIR 1958 SC 36 about motive being irrelevant where the services of a temporary servant are terminated in terms of the contract of the relevant rule has been accepted and followed; and the argument that has been advances by Mr. Lachhman Das Kaushal on behalf of the respondent is that questions relating to mala fides or lack of bona fides are inextricably mixed up with motive and if motive is altogether to be ignored or is irrelevant it is not open to the temporary servant to challenge the order of termination of services against him on the ground of mala fides.
On the other hand Mr. Abnasha Singh has sought to derive support for his contention that mala fides to derive support for his contention that mala fides on the part of the authority can form a good ground on which the validity of the order of termination of services can be attacked from several observations in Jagdish Mitter's case AIR 1064 SC 499 itself. According to him in the same judgment reference has been made to certain other decisions which the orders had been attacked on the ground of mala fides.
The first is Sukhbans Sigh v. State of Punjab AIR 1962 SC 1711. That was the case of a Tehsildar who was appointed as an Extra Assistant Commissioner on prohibition in 1945. In 1952, he was reverted to the post of Tehsildar from which he had been prompted. In 1953, a warning was served on him in conduct in several respects. Gajendragadkar J., (as he then was) in Jagdish Mitter's case, AIR 1964 SC 449 observed:
'Thus, the decision in this case was based mainly if not solely, on the ground that the reversion of the officer was mala fide. it is true that in the course of the judgment this court has observed that having regard to the sequence of events which led to the reversion followed by the warning administered to the officer considered in the light of his outstanding record the reversion could also be held to be a punishment but the officers pale which proved effective was the plea of mala fides against the Government.'
(7) Mr. Abnasha Singh says that in Sukbans Singh's case AIR 1962 SC 1711 no enquiry of any kind had proceeded the order ore reversion and all that the Court considered was whether Sukbans Singh had been punished. It is pointed out that after narrating the sequence of facts and events up to the date when the order of reversion was made and also as to what transpired on September, 18 1953, when the warning was given by the Government their Lordships proceeded to arrive at the following conclusion--
'The only reasonable inference which can be drawn from all these facts is that the Government was misconduct on his part and therefore reverted him. The omission of the Government to give reasons for his reversion does not make the action any the less a punishment but as the requirements of Art. 311(2) were not fulfilled as they ought to have been the Government wanted to give the reversion the appearance of an act done in the ordinary course entailing no penal consequences. The Circumstances clearly show that the action of the Government was mala fide and the reversion was by way of punishment for misconduct without complying with the provisions of Art. 311(2). The reversion of the appellant is therefore illegal.'
(8) Mr. Abnasha Singh has next relied on P. C. Wadhwa v. Union of India AIR 1964 SC 423 in which the reversion of P. C Wadhwa of the Indian Police Service was set aside on the ground that it had been ordered by way of punishment. A regular enquiry into his conduct was being held but it as thought since that enquiry would taken long time he might be reverted in meanwhile and an order of reversion was made by the Government.
S. K. Das, Actg. C. J., delivering the judgment on behalf of himself and Ayyangar, J., said that although as pointed in Parshotam Lal Dinghra's case AIR 1958 SC 36 the motive operation gone the mind on the Government may be irrelevant but must also be remembered that in a case where Government has by contract or under the rules the right to reduce an officer in rank Government may nevertheless choose to punish the officer by such reduction. Therefore what is considered in a case of this nature is the effect of all the relevant factors the conclusion is that the reduction is by way of officer even though Government has a right to pass the order of reduction, the provision of Art. 311 of the Constitution are attracted. Mudholkar, J. speaking for himself and on behalf of Subba Rao and Raghybar Dayal JJ, observed that a perusal of the file of the servant showed that instead of suspending him during the pendency of the enquiry resort was had to his reversion on certain vague grounds and that even in the department; enquiry which had been subsequently held after the order of reversion the only punishment awarded to him as of stoppage of one increment without prejudice to his future. As a result of what the Government did the servant had lost the benefit of having been restored to his former post in the light of the actual taken against him on the basis of the findings of the Enquiry Officer. In these Circumstances there was no doubt that the orders of the Government was mala fide.
(9) The next case which is of good deal of importance is that of Ram Saran Das v. State of Punjab Civil Appeal No. 36 of 1963, which was disposed of by the Supreme Court D/- 16-9-1963 (SC) Ram Sarup Das was working as a Revenue Assistant Agrarian Reforms Hissar on probation and was removed from service by an order passed by the Governor of Punjab under Rule 23 of the Punjab Civil Services (Executive Branch) Rules 1930. He challenged the validity of the order by a writ petitioners in this court which was dismissed in limine by a Division Bench. Ram Saran Das then appealed to their Lordships by special leave. After referring to his career and his allegations as against Mr. Bhim Singh who was the Deputy Commissioner Ferozepore as also Shri Pooran Sigh the Senior Superintendent of Police of that place and his case that the impugned order was in substances an order of dismissal--his alternative contention being that it was passed mala fide and in an arbitrary capricious and unconstitutional manner their Lordships observed:--
'As we have briefly indicated the petitioners filed by the appellant makes serious allegations in support of his case that the impugned order amounts to punishment and has been passed mala fide. It appears that the High Court was not impressed by the allegation and so chose to dismiss the petitioners summarily. In our opinion the High Court should not have adopted such a course in the present case were ought never to for get that justice must not only be done fairly but must always appear to be so done. When a responsible public servant holding a judicial office moves the High Court under Art. 236 and contends that the termination of his service though ostensibly made in exercise of the power conferred under Rule 23 of the Rules really amounts to his dismissal or that it exercise is mala fide the High Court should have then considered whether the allegations made by the appellant has been proved and if they were what would be the result of the said finding on his argument that the impugned order amounts to dismiss or has been passed mala fides.'
Their Lordships proceeded to say--
'There can be no doubt that in such cases the form in which the orders has been passed cannot be regarded as decisive. If in the light of the evidence adduced before it the Court is satisfied that notwithstanding the ostensible form in which the impugned order has been passed in substance it amounts in the appellants dismissal then the Court may be driven to the conclusion that Art. 311 applied to the case and non-compliance with the mandatory provision of Art. 311(2) may render the order consideration is; if the appellant is able to prove the allegation made by him would that justify his grievance that the exercise of the powers conferred on the governor the exercise of the powers conferred on the Governor under Rule 23 of Rules was mala fide. In that connections it will be necessary to examine the question as to whether proof of malice against Mr. Bhim Singh can introduce an element of mala fides in the order ultimately passed by the Governor. We wish to express no opinion on nay of these points. We have set out these considerations to induce why were think that it would have been more appropriate if the High Court had called upon the respondent to the file its return and then examined the merits of the writ petitioners filed by the appellant.'
Finally, while remanding the case to the High Court it was observed:--
'In case of this kind where serious allegations are made by the appellant against the responsible officers of the respondent to may be desirable not to rely merely on affidavits but to take evidence in Court. That, however, it s matter which the High Court in its discretion will have to consider. If the appellant wishes that he should be allowed to give evidence is support of his allegations the High Court may allow him to so. In that event the respondent may also be called upon the give evidence in rebuttal.
In the result we allow the appeal, set aside the order passed by the High Court and remained the writ petitioners to the High Court with the directions that it should be dealt with in accordance with law * *.'
(10) I have quoted in extensor from the above judgment because Mr. Abnasha Singh has strenuously contended that this case and other decisions mentioned before show that their Lordships have not strictly followed the view expressed by Chagla C. J in the Bombay case that it was not open to a temporary servant to say that his services were dispensed with mala fide., It is submitted that on that view the allegations of mala fides would have been totally disregarded of mala fides would have been totally disregarded and treated as irrelevant in the aforesaid cases but that was not done and the orders were struck down on the ground that they had been made mala fide. In my opinion it is neither necessary not is it within the province of this court to express any view on this aspect of Mr. Abnasha Singh's argument. There can however be little doubt that in the presence of the decisions in the case of Sukhbans Singh, AIR 1962 SC 1711: P C Wadhwa AIR 1964 SC 423 and Ram Saran Das civil Appeal No. 36 of 1963 D/- 16-9-1963(SC) and several other decisions which will be presently of mala fides as irrelevant when they are made while attacking an order of the Government of governmental authorities.
In Partap Singh v. State of Punjab AIR 1946 SC 72 a writ petitioners filed by Dr. Pratap Singh a Civil Surgeon in the employment of the Sate Government had been granted leave preparatory to retirement but subsequently orders were made by the Government revoking the leave and recalling him to duty. He was simultaneously placed under him to duty. He was simultaneously placed under suspension pending the result of a department enquiry into certain charges of misconduct which also had been ordered against him,. The main ground of challenge was that the Chief Minister of the State was actuated by mala fides and therefore the orders were bad. The first observations in this connection of Ayyangar J., who delivered the majority judgment which is noteworthy is that if the Chief Minister was actuated by mala fides in taking action against Dr. Pratap Singh such an action would be vitiated. After referring to certain English cases Ayyangar J. and mala fide are most often inextricably mixed on he summarised the position thus--
'Pausing here, we might summarise the position by stating that the Court is not an appellant forum where the correctness of an order of Government could be canvassed an indeed it has no jurisdiction ability of initiating disciplinary proceeding for the entirely of the power jurisdiction and discretion in that regard in vested by law in the Government. The only question which could be considered by the Courts whether the authority vested with the power has paid attention to or taken into account circumstances, events or matters wholly extraneous to the proceedings have been initiated mala fide for satisfying a private or personal grudge of the authority against the office. If the act is in excess of the matter is capable of interference and rectification by the Court. In such an event the fact that the authority concerned denies the charge of mala fides or asserts the absence of oblique motives or of its having taken not preclude the Court from inquiring into the truth of the allegations made against the authority and affording appropriate reliefs to the party aggrieved by such illegality or abuse of power in the event of the allegations being made out.'
It was next observed that the Court enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State including the Government acts bona fide and within the limits of its power an when a Court is satisfied that three is abuse an misuse of power and its jurisdiction is involved it is incumbent on the Court to afford justice to his individual.
In C. S,. Rowjee v. State of Andhra Pradesh AIR 1934 SC 962 in which case also mala fides had been alleged against the Chief Minister of the State it was pointed out that implications of mala fides and improper motives are mala in several case which sometimes have no foundation in fact and therefore it has become the duty of the Court to scrutinize them has become the duty of the Court to scrutinise them with care so as to avoid being in any manner influenced by them whether they have no foundations in fact. In this case the Court felt constrained to hold that the allegations the Chief Minister was motivated by bias and personal-ill will against the appellants before their Lordships stood unrebutted and therefore the impugned orders were set aside. It may be mentioned that in Partap Singh's case AIR 1961 SC 72 also it was held that the dominant motive which induced the Government to take auction against him was to wreak vengeance on him for incurring the wrath of the Chief Minister and bringing discredit on him by certain allegations which he had made in an article appearing in the Bitlz followed by communication to the same newspaper by his which was confirming those allegations large part of conclusion reached was that the impugned orders were vitiated by mala fides in that they were motivated by an improper purpose which was outside that for which the power or discretion was conferred on Government. The above two cases have a material bearing on the procedure and practice which ought to be followed in deciding writ petitioners in which allegations of mala fides have been made but that matter will be discussed at the proper stage.
(11) Apart from the English cases referred to in Partap Singh's case: AIR 1964 SC 72 by Ayyangar J, it will be useful mention a decision of the House of Lords Smith v. East Elloe Rural District Council (1959) 1 All E R 855 in which a compulsory purchase order with regard to certain property had been challenged on the ground that it had been made wrongfully and in bad faith. Viscount Simonds, Lord Morton of Henryton and Lord Radichiffe decided the matter primarily on the language of paragraph 16 of the Schedule contained in the Acquisition of Land (Authorisation Procedure) Act 1946 according to which a compulsory purchase order could not be questioned in any legal proceedings whatsoever. As Viscount Simon is put it would not be predicated of any order that it had been made in bad faith until it had been tested in legal proceedings an that as Judy that paragraph 16 barred. Lord Reid and Lord smorvell of Harro delivered dissenting opinions Lord Reid considered the implications and meaning of the expression 'mala fides' when used in relation to the exercise of statutory powers and said that this word had never been perennially in the region of hypothetical cases, It covered fraud or corruption. He further drew a distinction between an ultra vires act done bona fide and an act on the face of it regular but which would be held to be null and void if mala ides was discovered and brought before the Court. According to him the victim of mala fides would have his ordinary right of resort to the Court.
(12) Out of the Indian decision it is necessary to mention only to a few of them which are authoritative and binding. In Lahore Electric Supply Court., Ltd. v. Province of Punjab AIR 1943 Lah 41(FB) an order was made by the Government requisitioning all property etc. under the control of the Lahore Electric Supply Company under Rule 75 A of the Defence of India Rules. They validity of that order was attacked on various grounds including lack of bonafide and extraneous consideration Section 145 and 16 of the Defence of India Rules but before the Lahore Full Bench it was admitted by the learned Advocate-General that it could be shown and the Court came to the conclusion that the orders were passed for some collateral purposes alleged by the order S. 16 would constitute no bar. Young C. J., delivering the judgment of the Court examined a number of English cases and expressed the view that it was obvious from a consideration of the authorities that the Court could interfere if it was satisfied either that the order under Rule 75 A was ultra vires or that the order was not made bona fide but for some collateral object.
In Naranjan Singh Nathawan v. State of Punjab AIR 1952 SC 106 where certain detention orders been challenged it was observed that he question of bad faith it-raised would certainly have to be decided with reference to the Circumstances of each case and in Ashutosh Lahiry v. State of Delhi AIR 1953 SC 451 it was laid down that the satisfaction of the authority making the order as to the matters specified in the aforesaid Act was the only condition for the exercise of its powers and the Court could not substitute its own satisfaction for that of the detaining authority. It was however option to the order of detention been made by the authorities and in mala fide exercise of their powers. The observations in British India Corporation Ltd. v. The Industrial Tribunal Punjab (S) AIR 1957 SC 354 are also to the effect that where there are allegation so mala fides against the Government it becomes the duty of the Court to accord hearing to the parties after issuing notice to the respondent and record its decision on a consideration of all the Circumstances of the case. This court had dismissed the petitioners in that case in limine and their Lordships were of the opinion that it was not justified in doing so.
(13) Thus their is abundant authority for the view--and the decisions of the Supreme Court in which that view has been expressed are binding on us-that orders of the Government or governmental authorities can be as sailed on the ground inter alia that they were made mala fide or in abuse of powers or for collateral or extraneous reasons which all involve absence of good faith. In the present reference we are not called upon to express our opinion with regard to the exact scope and content of the allegations of mala fides which would render an order void and in co-operative. It became necessary to discuss the various decisions on the subject because the first question referred to us could not be satisfactorily answered without deciding whether such allegations are relevant or irrelevant when they are made for the purpose of attacking an order passed by a competent authority.
(14) The main point relating to practice and producer which should be adopted when allegations of mala fides are made which is involved in both the questions can now be considered. It has been suggested on behalf of the appellants the observations in the cases of Ram Saran Das, Civil Appeal No. 36 of 1963 D/. -16-9-1983(SC) Pratap Singh AIR 1964 SC 72 and C. S. Rowjee, AIR 1964 SC 962 and also British India Corporation Ltd., (S) AIR 1957 SC 354 (Supra) leave no room for doubt that in such cases it becomes the duty of the Court to enquiry into them and to decide the correctness or falsity thereof. Mr. L. D. Kaushal suggests that these cases fall in a special category inasmuch as in two of them the petitioners had been dismissed in limine and in the other two allegations of mala fides had been made against as high a dignitary as the Chief Minister of a State and it was in these Circumstances that the aforesaid observations were made He says that it is not possible to ignore the well known rule which has found expression in numerous cases decided by all the High Court in India as also in some decision of the Supreme Court that where there are disputed question of fact which might require an elaborate trial and enquiry the writ petitioners should be left pursue their ordinary alternative remedies in the regular Court. He has relied in particular on Union of India v. T. R. Varma (S) AIR 1957 SC 882 in which an order of dismissal from Government service. In respect of one T. R. Varma had been set aside by this court in a petitioners under Art. 226 of the Constitution. The matter was taken on special leave to the supreme court and Venkatarama Aiyar J., speaking for court said that a writ petitioners of a serious dispute which could not be satisfactorily decided without taking evidence It was further observed:
'It is not the practice of Court to decide question of that character in a writ petitioners and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondent to a suit.'
In this case the rule that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court issue a prerogative writ was stated to be well settled. It was pointed out that although the existence of another remedy does not affect the jurisdiction of the Court but that is a matter which must be taken into consideration while granting writs. Mr. Kaushal has urged with a good deal of force and plausibility that if their Lordships intended to lay does any such absolute rule in the cases of Ram Saran Das civil Singh AIR 1964 SC 72 C. S. Rowjee AIR 1964 SC 345 that whenever allegations of mala fides are made while attacking an order of the Government in a petitioners under art 226 it becomes the duty of the Court to decide them then it would lead to the result that exception would be engrafted on the other rule which has been accepted as well settled in (S) AIR 1957 SC 882 and that a proper reading of all the aforesaid decisions does not justify such a course being adopted Mr. Abnasha Singh very fairly and properly agrees that the discretion of the High Court being adopted Mr. Abnasha Singh very fairly and properly agrees that the discretion of the High Court while it undoubtedly possess under Article the aforesaid decisions and that it will depend on the facts of each case as to what course this court will follow. He does however suggest the where there are allegations of mala fides which are not vague and are of a precise nature this court ought not ordinarily to dismiss the petitioners in limine but should call for the return and after the examining and fully scrutinising the statement of facts in the affidavits supporting the petitioners and the return it should proceed to make up its mind as to the course to be adopted. According to him suits in Civil Court takes a long time and involve inordinate delay and expense and aggrieved parties approach this Co. under Article 226 for speedy and immediate relief and all these matters ought to enter into determination of the question apart from other consideration like serious disputes on issues of fact whether the petitioners should be directed to seek his remade in the Civil Court or the matter should be decided by this court itself.
(15) Keeping in view the submissions of the learned counsel for the parties and all the decisions of the Supreme Court discussed before I venture to think that the answer to the first question should be like this:
When an allegation is made that a particular order or decision is mala fides and the allegations is denied the Court will ordinarily enquiry into the question of fact but it always has the discretion to direct the petitioners to have the matter decided irregular action if such a course so considered necessary and expedient for a proper disposal of the case in view of all the facts and Circumstances.
(16) Before answering the second question it may be observed that if the Court decides to enquiry into the question of fact relating the mala fides it ought to normally inform the parties of its intention to investigate the same. In that event the parties would be entitled to rely either on the affidavits which have already been filed or which may further be permitted to be filed as also invoke what is provided in the Rules and Orders of this court, Rule 9 contained in Chapter 4-F (b) Volume V is that if cause be shown or answer made upon affidavit putting in issue any material question of fact the Court may allow oral testimony adjourn the hearing of the rule to some other date, In such a case either party may obtain summonses to shall be similar to that followed in original cases in the High Court. It may be mentioned that as a matter of practice it will be almost impossible for this court to allow oral testimony of witnesses to be taken in every case in which the disputed fact has to be investigated. It is noteworthy that even in England there has hardly been any occasion for the last several years when such a course has been adopted or allowed to be taken.
In Rex v. Kent Justices 19238 W N 137 in proceedings for writs of certiorari and mandamus against certain Justices of the Peace and an affidavit had been filed by the Justices and no behalf of the writ petitioners a notice was served upon them under Order 38 rule 27 cross-examination at the hearing of the petitioners. That provision was in the following terms:
'When the evidence is taken by affidavit any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross-examination at the trial........ and unless such dependent is produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the Court or a Judge........'
It is stated in the report that Lord Heward C. J. said that for something like 50 or 60 years no order had been made on the Crown side for the cross-examination of deponent and it was enough to add that such and order was not likely to be made except in very special Circumstances and that no such special Circumstances had been shown in that cases. It is apparent that in view of the practical difficulties which have already been indicated allowing oral testimony of witnesses to be taken pursuant to rule 9 would not be possible no desirable in every case where allegations of mala fides are made in a petition under Article 226. The Court will permit such a course to be adopted only in cases of an exceptional type. Here again no hard and fast rule can be laid down to fetter the discretion of the Court and the course to be adopted will depend on the facts of each case. The answer to question No. 2 therefore would be--
The Court will inform the parties of its intention to investigate the disputed facts whenever it decides to do so and then adopt such a course as may be proper and necessary to determine those facts in the light of the rules contained in the Chapter 4 -F(b), Volume V of the Rules & Orders framed by this court.
(17) I would therefore answer the two question referred to the Full Bench in the manner indicated above.
(18) I agree that the answer to the first question must be in the negative an done it is clear that this court is in law out bound to start an enquiry in every case then it becomes a matter for the exercise of judicial discretion which must depend on the Circumstances of each case for which no general rule can be lead down.
(19) I agree that if enquiry is found necessary the proceedings must be in accordance with the rules of this court contained in Chapter 4 F(b) of Volume V.
Premchand Pandit, J.
(20) I agree that the answers to the two questions should be--
(1) The Court is not bound but it must be left to its discretion as to whether it should start an enquiry. That will however depend on the Circumstances of each case for which no general rule can be laid down.
(2) If the Court decides to start an enquiry then it will inform the parties of its intention of doing so and in that case the proceedings would be in accordance with the rules of this court contained in Chapter 4-F(b) Volume V.
(21) Questions answered.