Dr. Devendra Gautam vs State Of Madhya Pradesh And Others

Sanjay Yadav, J

This appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, principally arises

from the order dated 15.11.2019 passed in Review Petition No.1438/2019; whereby learned Single Judge while setting aside its order dated 26.09.2019

passed in Writ Petition No.16709/2018, allowed the writ petition.

The controversy in Writ Petition was in respect of the charge of the post of Principal, Janta Mahavidyalaya, Rewa. Exception was taken to orders

dated 26.12.2017, 28.12.2017 and 30.06.2018. That, by order dated 26.12.2017, representation preferred by the respondent No.5 Dr. Ram Manoj

Dwivedi, Assistant Professor (Sanskrit), for correction of seniority, was turned down. That, by order dated 28.12.2017, present appellant was given

the charge of Principal of said college. Whereas, by order dated 30.06.2018, the representation preferred by respondent No.5 in furtherance to

direction dated 28.02.2018 in Writ Petition No.228/2018 for grant of charge of the post of Principal of said college, was rejected. Evident it is from the

order dated 30.06.2018 that the representation was rejected for the following reasons :

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Learned Single Judge vide order dated 26.09.2019 in Writ Petition No.16709/2018 (Dr. Ram Manoj Dwivedi vs the State of M.P. and others)

negatived the challenge on the following findings :

“11. The moot question involved in this case is as to whether, the petitioner can be given the charge of the post of Principal being the senior most

teacher or his claim can be refused considering the alleged enquiries and the charges pending against him?

After hearing the arguments advanced by the learned counsel for the parties as well as on a bare perusal of the record available, I am of the

opinion that it is an undisputed fact that the petitioner has been granted seniority by the respondent/Authorities vide letter dated 18. 06.2015

(Annexure-P/14) w.e.f. his first date of appointment i.e. 06.08.1983 even a seniority list published in the year 2017 (Annexure- P/25) in which, the

date of appointment of the petitioner was shown w.e.f. 6. 08.1983. Vide letter dated 06.03.2018 (Annexure-P/34), the Registrar of the University has

clarified that in the gradation list of the Assistant Professors published by the University, the petitioner has been placed at serial No.24 in which, he

was shown to have been appointed on 6. 08.1983. Nobody has disputed this fact that from the date of appointment or from the date of seniority

granted to the petitioner, he is senior to respondent No.5. However, respondent No.5 has objected that the seniority is not the criteria for granting

additional charge of the higher post i.e. Principal of the College, on the contrary he has submitted that on account of pending enquiries against the

petitioner, he has been deprived from the charge of the post of Principal. Although, in a reply of official respondent No.5, nowhere it is mentioned that

the petitioner is not being given the charge of the post as he is facing some enquiries relating to financial irregularities. From the record available and

even reply filed by the respondents, they failed to produce any material before this Court as to what enquiries are pending against the petitioner and

not only this, the petitioner has also sought information from the respondents to apprise him as to what enquiries are pending against him and what

allegations were being enquired about but neither it was supplied to the petitioner nor it was produced before this Court. Although, from the documents

available, it reflects that there were no enquiries pending against the petitioner. Even though, the petitioner failed to prove that holding the charge of

the post of Principal is his statutory or constitutional right merely, because he is the senior most person available in the College. It is a trite law that no

mandamus can be issued unless any legal, vested, statutory or constitutional right of the petitioner is infringed. It is also a settled principle of law that

the High Court in writ jurisdiction cannot enforce any executive instructions. Even in the case of Rakesh Kumar Verma (supra), the Division Bench of

this Court has observed as under:-

“In the absence of regularly promoted Principal, the State Government is required to make a working arrangement. In such working arrangement,

if a Principal of another College has been given charge, the appellant who is only an Assistant Professor, cannot claim that he has any vested right for

being given charge of the Principal of the College. Learned Single Judge has rightly taken into consideration the Supreme Court judgment reported as

AIR 1993 SC 2273 [State of Haryana Vs. S.M. Sharma and others] as well as judgment of this court reported as 2016 (3) MPLJ 152 [Dr. V.B. Singh

Baghel Vs. State of MP and others]. We do not find any error in the order passed by the learned Single Judge which may warrant interference in the

present intra court appeal.â€​

In view of the above, I do not find any substance in the contention raised by the learned counsel for the petitioner. Resultantly, the petition filed by

the petition being without any substance, is hereby dismissed.â€​

The respondent No.5 thereafter, sought review of the order dated 26.09.2019 vide Review Petition No.1438/2019 on the ground that learned Single

Judge glossed over the aspect of malice. It was urged that order dated 30.06.2018 was also challenged on the ground of malice.

Learned Single Judge taking note of settled principle of law that the scope of review is very limited and the order can be reviewed only when

mistake is apparent on the face of record, went on to observe that “In the original petition, the petitioner has made allegations against the

respondents-authorities saying that they are somehow trying to harm, dislodge and humiliate the petitioner. In the order passed by this Court, it has also

been observed that the petitioner was undisputedly granted seniority treating his appointment w.e.f. 06.08.1993 and was placed at serial No.24 and as

such he was the senior most person in the institution and also senior to respondent No.5. It was also incorrectly alleged that there were pending

enquiries against the petitioner, therefore, he cannot be given the charge of the Principal. It is also observed by this Court in the order dated

26.09.2019 that the respondents failed to produce any material before the Court showing as to what enquiries were pending against the petitioner, but

on the contrary it is observed that there was no enquiry pending against the petitioner and the authorities are unnecessarily trying to make out a case

against the petitioner to deprive him to get the charge on the post of Principal. Thus, it is apparent that the action of the respondents/authorities suffers

not only with malice in fact but also with malice in lawâ€. It further observed that “the petitioner in this petition has alleged specific allegation of

malice against the-then incumbent /Additional Director, Higher Education Department, Rewa Division, Rewa. In this regard, he has also filed a

document i.e. a letter dated 18.09.2017 (Annexure P/32) but that has not been considered. According to the said letter dated 18.09.2017, the petitioner

has made specific allegation against the said officer saying that he should be kept away from the enquiries conducted against the petitioner because he

had filed several contempt cases against him and pending before the High Court, Jabalpur. Since there was no reply to that allegation and this Court

has not considered that aspect, now it is required to look into that and taking note of the law laid down by this Court carving out an exception for

holding the charge of the higher post, normal rule would not be applicable if the order is malicious in natureâ€. Learned Single Judge further observed

that “This Court has also not considered the aspect that present case is not a case of holding the temporary charge of higher post lying vacant and

therefore seniority can be ignored but here in this case the post of Principal has not been filled-up since 1998 as no regular appointment has been

made, therefore, the seniority of the petitioner cannot be ignored as there was no other impediment in giving the charge on the post of Principal to the

petitioner. The State Government has also framed the policies on so many occasions that the officiating charge of the higher post should be given to

the senior most person unless there is any impediment to give the charge of the said post. In the Higher Education Department also, the instructions

have been issued that the seniority is paramount consideration for giving officiating charge of the higher postâ€. Consequently, learned Single Judge

reversed its order of 26.09.2019 and allowed the writ petition holding that :

“Accordingly, the order passed by this Court needs to be modified to the extent that the petitioner cannot be denied to hold the charge of the

Principal merely because he is senior most Professor available in the College since action of the respondent suffers from malice keeping the petitioner

away by making frivolous attempts to hold the charge of the post of Principal, his valuable right in pursuance to the instructions issued by the State

Government / Higher Education Department cannot be ignored at this stage. Thus, keeping other observations intact, as observed in the order dated

26.09.2019 which is sought to be reviewed, the same is modified to the extent that the petitioner being the senior most teacher is otherwise entitled to

hold the officiating charge of the Principal of the College because the action of the authorities denying his claim is not bona fide but that suffers from

maliceâ€​.

The order is being assailed on the ground of it being based on perverse findings. Taking us through the pleadings in Writ Petition No.16709/2018, it

is contended on behalf of the appellant that it is not only that the persons/official concerned against whom the allegations were allegedly made were

made parties, there was no specific allegations of malafide. It is urged that initially learned Single Judge vide order dated 27.07.2018 passed an interim

order on the first date of hearing directing the Authorities to give the charge of Principal of Janta Mahavidyalaya to respondent No.5; however, the

said order was challenged by the appellant in Writ Appeal No.999/2018, wherein, following order came to be passed on 08.08.2018 :

“The challenge in the present appeal is to an order passed by the learned Single Bench on 27.07.2018 in W.P. No.16709/2018 whereby, the

authorities were directed not to allow appellant to act as the Principal of Janta Mahavidyalaya, Rewa and further directed to reconsider the decision in

respect of giving additional charge of the Principal of Janta Mahavidyalaya, Rewa taking note of the seniority of the writ petitioner and the present

appellant.

Learned counsel for the writ petitioner submits that the writ petitioner was given the officiating charge but the same was taken from him under the

guise of some inquiry pending and the charge of the post of Principal entrusted to the present appellant. Learned counsel for the writ petitioner relies

upon a communication dated 06.03.2018 (Annexure P-34) to contend that inquiry stands concluded and that he has been exonerated.

We find the contention of the writ petitioner to be incorrect. The document Annexure P-34 dated 06.03.2018 is an inter-departmental communication

from the Registrar of Awadhesh Pratap Singh University, Rewa to the Commissioner, Higher Education, State of Madhya Pradesh. In fact, a detailed

order Annexure P-3 has been passed on 30.06.2018 by the Commissioner on behalf of the State Government that the writ petitioner is not the senior

most and that the complaints against the writ petitioner are pending consideration before the Vice Chancellor of the University. Therefore, entrustment

of the responsibilities of the officiating Principal will affect the fair conduct of the inquiry pending against him.

In view of the said finding recorded by the Commissioner in its order dated 30.06.2018, we find that the learned Single Bench has erred in law in

passing an order directing the authorities not to allow the present appellant to act as the Principal of the College. Still further, by virtue of an interim

order, the writ petitioner has been granted the relief claimed in the writ petition itself. By virtue of an interim order, the relief claimed in the writ

petition cannot be granted.

Consequently, the order passed by the learned Single Bench on 27.07.2018 is set aside. Let the writ petition be decided on merit in accordance with

law.â€​

It is further contended that the respondent No.5 has never impleaded any of the Authorities as eu-nomine party in the writ petition; therefore, no

ground of malice could have been raised by respondent No.5 and without impleading the Authorities as party by name. It is urged that the Authorities

were not given due opportunity to explain the malice as alleged by respondent No.5 therefore, the finding recorded by learned Single Judge that the

Authorities have acted malafidely is unfounded and deserves to be set aside. It is also contended that State Government as well as the appellant by

filing reply in the writ petition have categorically stated that as per the Rules of 1979, the respondent No.5 is entitled to claim seniority for the purpose

of grant of charge of Principal only from the date he was absorbed in Janta Mahavidalaya i.e. w.e.f. 25.09.1998. Therefore, the appellant being senior

to the respondent No.5/writ petitioner, the charge was rightly given to the appellant. It is submitted that the seniority list issued by the College was

never questioned by respondent No.5 nor it was set aside by learned Single Judge. On these contentions, the appellant seeks indulgence.

Respondent No.5, on his turn, has supported the impugned order. It is contended that even if the respective officers were not parties in person

which, in fact, were not required to, in case where there is malice in law. It is urged that there were ample material documents on record to establish

malice in law which escaped the attention of learned Single Judge while deciding Writ Petition No.16709/2018; when brought to notice vide review

petition; the material documents were considered in right perspective. It is urged that learned Single Judge did not err in law as would warrant any

indulgence.

Considered rival submissions and perused the entire record.

The scope of review is well established by catena of decisions.

In Satyanarayan Laxminarayan Hegde vs Millikarjun Bhavanappa Tirumale AIR 1960 SC 137, it is held : “17. … An error which has to be

established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent

on the face of the record.†Further, in Aribam Tuleshwar Sharma vs Aribam Pishak Sharma AIR 1979 SC 1047, it is held : “3. .. The power of

review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due digilence was not within the

knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some

mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the

ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with

appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.â€​

In Meera Bhanja vs Nirmala Kumari Choudhury (1995) 1 SCC 170, it is held :

“8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47,

Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the

High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v.

Aribam Pishak Sharma [(1979) 4 SCC 389 : AIR 1979 SC 1047] , speaking through Chinnappa Reddy, J., has made the following pertinent

observations:

“It is true as observed by this Court in Shivdeo Singh v. State of Punjab [AIR 1963 SC 1909], there is nothing in Article 226 of the Constitution to

preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or

to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may

be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the

person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error

apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the

decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power

which may enable an appellate court to correct all manner of errors committed by the subordinate court.â€​

Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were

entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is

concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the

record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to

the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale [AIR 1960 SC 137] wherein,

K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said

to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established,

by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior

court to issue such a writ.â€​

In Lily Thomas vs Union of India (2000) 6 SCC 224, it is held :

The dictionary meaning of the word “review†is “the act of looking, offer something again with a view to correction or improvementâ€. It

cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji (1971) 3 SCC 844

held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also

not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law

cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition

was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration

shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka [1993

Supp (4) SCC 595] held:

“19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of

human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made.

Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no

statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out

such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai [AIR 1941 FC 1] the Court

observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow

ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain

Rae v. Bijai Govind Singh [(1836) 1 Moo PC 117] that an order made by the Court was final and could not be altered:

‘… nevertheless, if by misprision in embodying the judgments, errors have been introduced, these courts possess, by common law, the same power

which the courts of record and statute have of rectifying the mistakes which have crept in…. The House of Lords exercises a similar power of

rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step

further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable

the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.’

Basis for exercise of the power was stated in the same decision as under:

‘It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice

being done by a court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently

made as if the party had been heard.’

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing

finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by

Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred

the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame

rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering

this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, ‘for any

other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of

circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has

the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The Court is thus

not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.â€​

The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.

…

…. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments

advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been

shown for reviewing the judgment. The words “any other sufficient reason appearing in Order 47 Rule 1 CPC†must mean “a reason

sufficient on grounds at least analogous to those specified in the rule†as was held in Chhajju Ram v. Neki [AIR 1922 PC 112] and approved by this

Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526. Error apparent on the face of the proceedings is

an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa [AIR 1954 SC 440] this Court held

that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233] it

was held:

“[I]t is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real

difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case.

When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to

suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.

Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in â€" ‘Batuk K. Vyas v. SuratBorough

Municipality [AIR 1953 Bom 133]’ that no error could be said to be apparent on the face of the record if it was not self-evident and if it required

an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in

which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might

not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there

being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.â€​

Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme

Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3

SCC 635]. The petition is misconceived and bereft of any substance.â€​

In Union of India vs Sandur Manganese & Iron Ores Ltd., (2013) 8 SCC 337, it is held :

“23. It has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a

view. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715], this Court held as under: (SCC p. 719, para 9)

“9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record.

An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the

record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is

not permissible for an erroneous decision to be ‘reheard and corrected’. A review petition, it must be remembered has a limited purpose and

cannot be allowed to be ‘an appeal in disguise’.â€​

It is also a trite law that the malafide, whether of facts or law, has to be pleaded and proved, an inference cannot be drawn. In State of Punjab vs

V.K. Khanna (2001) 2 SCC 330, it is held that:

“25. … The expression “mala fide†has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful

imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona

fide â€" actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some

other factors which would depict a bad motive or intent on the part of the doer of the act.â€​

In Prabodh Sagar vs Punjab SEB, (2000) 5 SCC 630, it is held that “mala fide†is not meaningless jargon and it has its proper connotation

which can only be appreciated from the record of the case and besides averments, they must be supported by facts on record:

“13. As noted above, the High Court has not highlighted this aspect of the matter, though the same was brought to the notice of the High Court, we

do not know for what reasons, neither do we intend to delve into it but the fact remains that the comment of the learned advocate appearing for the

Board during the course of hearing before this Court that the litigatious spirit of the petitioner has, in fact, brought into effect the exercise of

jurisdiction of the writ court to a ludicrous extent. We do find some justification in the criticism of the learned advocate for the Board vis-Ã -vis the

conduct of the appellant-petitioner herein. The petitioner has been, as noted above, from 1989 onwards engaged himself in the law courts rather than

exerting himself in an effort to improve his capability as the employee of the Board so that the Board and the State obtain maximum benefit from out

of the services of the appellant-petitioner but unfortunately his litigatious spirit prevailed upon him and as noticed above we do find some justification

as regards the comment made by the learned advocate appearing for the Board. Mala fides have been alleged against the statutory Board (Punjab

State Electricity Board) but the contextual facts negate such an allegation. Incidentally, be it noted that the expression “mala fide†is not

meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each

case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and

circumstances. We ourselves feel it expedient to record that the petitioner has become more of a liability than an asset and in the event of there being

such a situation vis-Ã -vis an employee, the employer will be within his liberty to take appropriate steps including the cessation of relationship between

the employer and the employee. The service conditions of the Board's employees also provide for voluntary (sic compulsory) retirement, a person of

the nature of the petitioner, as more fully detailed hereinbefore, cannot possibly be given any redress against the order of the Board for voluntary

retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word “mala

fide†by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e.

exactly what the High Court has done and that is the reason why the narration has been noted in this judgment in extenso. Tampering of the annual

confidential rolls has been alleged but there is no evidence in regard thereto or even to link up the two private respondents therewith. While it is true

that the earlier relationship between an employer and employee or between the employees was that of mutual trust, confidence or welfare, presently

the situation in general stands polluted and may be even one degree higher than the pollution of the environment, but that does not however clothe the

court to come to a conclusion of mala fide without there being any basic evidence being made available to the court.â€​

Furthermore, unless established that an order is made contrary to the object and purpose of the Act, an act done cannot be said to be malicious or

malice in law. It is not when merely the petitioner thinks, but does not establish on facts, an inference of malice in law can be drawn. In Suraj Pal

Sahu vs State of Maharashtra (1986) 4 SCC 378, it is held:

“25. An order is mala fide when there is malice in law although there is no malice in fact. The malice in law is to be inferred when an order is

made contrary to the objects and purposes of the Act. Whether in any particular case this is so or not must depend upon the facts and circumstances

of the case. ...â€​

In the case at hand, learned Single Judge having glossed over these aspects, erred in reversing a well considered order passed in Writ Petition

No.16709/2018 which cannot be given the stamp of approval.

Consequently, order dated 15.11.2019 passed in Review Petition No.1438/2019 is set aside and the order dated 26.09.2019 passed in Writ Petition

No.16709/2018 is restored.

The Appeal is disposed of finally in above terms. No costs.