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D.N. Bandopadhyaya Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 11 of 1974
Judge
Reported inAIR1976Raj83; 1975()WLN551
AppellantD.N. Bandopadhyaya
RespondentUnion of India (Uoi) and ors.
Appellant Advocate M.C. Bhoot, Adv.
Respondent Advocate L.R. Bhansali, Adv.
DispositionAppeal dismissed
Cases ReferredBachhittar Singh v. State of Punjab
Excerpt:
.....the 'court' or 'the judicial tribunal'.;(b) malicious prosecution - disciplinary enquiry before the domestic tribunal is not 'prosecution' and government servant cannot claim damages for malicious prosecution.;there was no prosecution launched by the departmental authorities against the plaintiff and, therefore, he could not institute a suit for damages for malicious prosecution because it is not possible to say that the plaintiff was prosecuted before a judicial authority. a government servant who had to face a disciplinary enquiry before the domestic tribunal created under the rules or regulations cannot come forward and say that he was prosecuted before a judicial tribunal and therefore he cannot claim damages in tort under the head malicious prosecution. - - 11. the word 'quasi'..........inflicting the aforesaid punishment. after the order was set aside, the plaintiff preferred a suit for malicious prosecution in the court of the district judge, kota and claimed damages to the extent of rs. 10,868/- alleging that the disciplinary authority instituted departmental enquiry without any reasonable and probable cause and it was out of malice that the plaintiff was punished by the disciplinary authority. in that suit the union of india, the chief engineer, western railway, churchgate, bombay and the dvisional superintendent eastern railway, kota were impleaded as defendants.3. the suit was contested by the defendants mainly on the ground that no proceedings for malicious prosecution could be instituted against the defendants as the enquiry conducted by the disciplinary.....
Judgment:

V.P. Tyagi, J.

1. This appeal has been filed by plaintiff D.N. Bandopadhyaya challenging the correctness of the judgment of the District Judge, Kota dated 20th April, 1973 dismissing plaintiff's suit for malicious prosecution claiming damages from the respondent to the extent of Rs. 10,868/-.

2. The facts giving rise to this litigation may be summarised, in a nut-shell as follows:

On 7th March, 1965 the plaintiff was posted as Permanent Way Inspector, Western Railway at Bayana. A wagon of the goods train No. 502 Up derailed between Dumariya and Bayana stations which fell within the jurisdiction of the plaintiff. The Divisional Superintendent Kota instituted an enquiry to find out the cause of the accident and appointed a committee for that purpose. The committee could not place the responsibility of this accident on any of the officers but the Divisional Superintendent Kota did not agree with the opinion of the enquiry committee and directed it to reassemble and findout by a process of elimination the primary cause of the accident and pin down the responsibility on the members of the staff responsible for maintaining the traffic. The defect in the track could not be traced out by the committee but it was of opinion that 'the possibility of a low joint cannot be ruled out.' It may be mentioned that the track was laid down under the supervision of the plaintiff and, therefore, a show cause notice was issued to him as to why disciplinary action may not be taken against him. After the disciplinary enquiry, the plaintiff was found guilty of neglect of duty and the disciplinary authority stopped one grade increment of the plaintiff. The punishment awarded by the disciplinary authority was upheld by the appellate authority. In a writ petition filed by the plaintiff before this Court, it was held, 'in my view the punishment has been inflicted on a mere possibility of a low joint which in the opinion of the disciplinary authority could not be ruled out. In the absence of any definite finding by the Enquiry Committee and the Disciplinary Authority that there was a low rail joint at the point where the derailment of the wagon had taken place, it is difficult to sustain the impugned order on a mere possibility of a low rail joint which could be taken as one of the causes of the derailment'. Applying the golden rule of criminal jurisprudence that if a man is to be held guilty on the basis of circumstantial evidence alone then the circumstances must be of such nature which may lead to no other inference except the guilt of the officer charged, this Court set aside the impugned order inflicting the aforesaid punishment. After the order was set aside, the plaintiff preferred a suit for malicious prosecution in the Court of the District Judge, Kota and claimed damages to the extent of Rs. 10,868/- alleging that the disciplinary authority instituted departmental enquiry without any reasonable and probable cause and it was out of malice that the plaintiff was punished by the disciplinary authority. In that suit the Union of India, the Chief Engineer, Western Railway, Churchgate, Bombay and the Dvisional Superintendent Eastern Railway, Kota were impleaded as defendants.

3. The suit was contested by the defendants mainly on the ground that no proceedings for malicious prosecution could be instituted against the defendants as the enquiry conducted by the disciplinary authority cannot come within the scope of the expression 'prosecution' and that the enquiry cannot be said to have been instituted without reasonable and probable cause. It was also averred that the element of malice was altogether absent in the institution of the enquiry.

4. The learned Judge dismissed the plaintiff's suit holding that the enquiry could not come within the scope of the expression 'prosecution' and that the ingredients for filinga suit for malicious prosecution, namely, the malice and the absence of reasonable and probable cause are altogether missing in this case. The appellant having felt aggrieved by the said judgment of the learned District Judge, has come in appeal before this Court.

5. Mr. M.C. Bhoot appearing on behalf of the appellant urged that no doubt the enquiry instituted by the disciplinary authority was of a civil nature but the circumstances in which the enquiry was instituted go to show that it was nothing but an abuse of the power vested in the disciplinary authority under the regulations and that the enquiry was ordered out of sheer malice and without reasonable and probable cause. Mr. Bhansali appearing on behalf of the Union of India on the other hand contended that a suit in tort for malicious prosecution can be filed only when there is a prosecution of plaintiff which according to him means when the plaintiff was charged for a criminal offence before a judicial officer or tribunal and that the charge must have been made without reasonable and probable cause and out of malice. According to Mr. Bhansali not a single ingredient in the present case is in existence to enable the plaintiff to file a suit for damages for malicious prosecution.

6. Lengthy arguments were addressed to the Court on the question whether enquiry made in the conduct of an employee by the master could fall within the scope of the expression 'prosecution' and whether an officer appointed to conduct such an enquiry can be treated as a court. Relying on an authority of the Lahore High Court in Fakir Chand v. Khushi Ram, AIR 1933 Lah 735 and Patna High Court in Jagdeo Sahu v. Dwarka Prasad, AIR 1948 Pat 88 Mr. Bhoot urged that when the proceedings taken against an employee are vexatious in nature and not bona fide then the element of malice is implicit in them. According to Mr. Bhoot after the report was submitted by the enquiry committee that responsibility could not be fastened for the derailment of the wagon on any of the officers, the attitude shown by the Divisional Superintendent, Kota in pursuing the matter, indicates that he was acting against the plantiff with a malice to harass him and to unnecessarily punish him. It is true that the enquiry committee could not in the first instance pin down the responsibility for the derailment on any of the officers but when it was asked once again to re-examine the issue by the Divisional Superintendent, Kota, the committee reported that the possibility of low joint at a place where the wagon derailed could not altogether be ruled out and since the plaintiff was incharge of laying down the track, he was found guilty of negligence and punished by the disciplinary authority. Except the aforesaid mentioned circumstances, there is no positive allegation of the plaintiff against the Divisional Superintendent, Kota that he was harbouring any ill-will against theplaintiff. In my opinion the circumstances on which reliance has been placed by the plaintiff to hold a malicious intention on the part of the Divisional Superintendent are not sufficient to draw that inference. The element of malice therefore is missing in the departmental proceeding initiated against the plaintiff.

7. The main question which has been pressed by Mr. Bhansail before me is that the proceedings taken by the disciplinary authority cannot come within the mischief of the expression 'prosecution'. According to Mr. Bhansali the prosecution commences where a criminal charge is made before judicial officer or tribunal. In the present case, his contention is that neither a charge of a criminal nature was made against the plaintiff nor was any officer, who could be termed as judicial officer, moved in that behalf. In support of this contention he placed reliance on a Mysore authority in Bolandanda Pemmayya v. Ayaradara Kushalappa, AIR 1966 Mys 13.

8. This cause of claiming damages for malicious prosecution in tort arises when the process of law has been abused by a person against another without a reasonable and probable cause and with a malicious intention to harm him. The proceedings must be proved by the plaintiff to have been inspired by malice and destitute of any reasonable cause even if the offence charged was not indictable one.

9. In the Mysore case a suit for damages was filed because a complaint of theft was lodged before the Sub-Inspector of police alleging that the plaintiff had committed theft. The police after recording the statements of the parties searched the house of the plaintiff and nothing incriminating was found during investigation. A note was made by the police authority on the complaint that it was false and, therefore, the complaint was filed. The plaintiff instituted a suit for damages for malicious prosecution. A question arose whether damages could be demanded in tort for malicious prosecution when no judicial authority was set in motion as a consequence of complaint made by the defendant. The learned Judge while examining this question quoted the meaning of 'prosecution' from Clerk and Lindsell on Tort, 7th Edition at page 670 where the learned author has described the meaning of 'prosecution' as follows :

'To prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question.'

In Halsbury's Laws of England Vol. 19, page 670 the word 'prosecution' is thus defined:

'A prosecution exists where a criminal charge is made before a judicial officer or Tribunal.'

10. Relying on the aforesaid meaning given to the term 'prosecution' the learned Judge came to the conclusion that mere filing of a complaint before the police where the complaint was ordered to be filed in that office after the examination of the parties and where no judicial authority was set in motion as a consequence of such complaint, the proceedings taken by the police authority did not come within the purview of the expression 'prosecution'. Mr. Bhoot on the other hand argued that the Supreme Court in Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 has held that proceedings taken by the disciplinary authority are judicial proceedings and, therefore, any action taken by the disciplinary authority in conducting the enquiry against the government servant must be taken as a judicial officer who was moved levying a charge of quasi criminal nature against a civil servant. I feel that the learned counsel has not correctly understood the scope of the observations of the learned Judges of the Supreme Court in the said case. The question that came up for consideration of the Supreme Court was whether the departmental enquiry held against a Government servant can be divided into two parts, namely, (a) the enquiry which involves a decision of the question whether the allegations made against the servant are true or not and (b) taking action i.e. in case the allegations are found to be true whether the servant should be punished or not and if so, in what manner. It was contended before the Supreme Court that after dividing the whole enquiry into two parts the first point which involves the taking of decision on the evidence was judicial in nature while the latter part was purely an administrative decision liable to be changed by the the State. Examining these submissions of the learned counsel for the government employee, the Supreme Court held that the departmental proceedings were not divisible in this sense. There is just one continuous proceeding though there are two stages in it. The first is coming to a conclusion on the evidence as to whether the charges alleged against the Government servant are established or not and the second is reached only if it is found that they are so established. Both of these stages in the opinion of the learned Judges of the Supreme Court were equally judicial. But on a perusal of the entire decision, I find that the learned Judges nowhere held that the status of an enquiry officer or of a disciplinary authority in departmental proceedings was that of a judicial officer. To bring particular proceedings under the purview of the expression 'prosecution' it is necessary that the law should be set in motion by making a complaint before an authority exercising judicial powers. It is true that the disciplinary authority that conducts an enquiry or passes the final order against a government servant discharges its function in a quasi judicial manner but it cannot be called a judicial authority.

11. The word 'quasi' when prefixed to a noun means that although the thing signified by the combination of 'quasi' with the noun does not comply in strictness with the definition of that noun, it shares its qualities, falls philosophically under the same head, and at best marked by its approximation thereto. When prefixed to a legal term, the word 'quasi' generally means that the thing which is described has some of the legal attributes denoted and connoted by the legal term, but that it has not all of them. Quasi judicial tribunal no doubt discharges the functions which are analogous to that of the judicial tribunal but they cannot acquire the status of the judicial tribunal. The quasi judicial tribunal discharging its function while conducting a disciplinary enquiry against a Government servant is generally domestic tribunal and it cannot be placed at par with the 'court' or 'the judicial tribunal'. In this view of the matter I cannot accept the contention of Mr. Bhoot that by taking the proceedings against his client the Divisional Superintendent Kota 'prosecuted' Shri D.M. Bandopadhyaya. I therefore hold that there was no prosecution launched by the departmental authorities against the plaintiff and, therefore, he could not institute a suit for damages for malicious prosecution because it is not possible to say the plaintiff was prosecuted before a judicial authority. A Government servant who had to face a disciplinary enquiry before the domestic tribunal created under the Rules or Regulations cannot come forward and say that he was prosecuted before a judicial tribunal and therefore he cannot claim damages in tort under the head malicious prosecution.

12. As observed above, the circumstances of this case do not also establish an element of malice while instituting enquiry against the plaintiff and, therefore, both the essential elements which give rise to a cause for filing a suit for damages for malicious prosecution are altogether missing. The learned trial Judge has therefore rightly rejected the claim of the plaintiff for damages.

13. For the aforesaid reasons the appeal fails and is hereby dismissed. In the circumstances of the case I pass no order as to costs.


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