Holding

The State of Jharkhand was competent under Sections 72 and 74 of the Bihar Reorganisation Act, 2000 to transfer the appellant and to order his compulsory retirement, and the order was not illegal, arbitrary or mala‑fide.

Summary

Purushottam Kumar Jha, appointed as a Field Clerk on compassionate grounds by the State of Bihar in 1996, was provisionally transferred to the newly created State of Jharkhand after the Bihar Reorganisation Act, 2000. He claimed he was actually a Law Officer/Legal Assistant, refused clerical duties, and alleged that the State of Jharkhand had no jurisdiction to discipline him, that the disciplinary proceedings were mala‑fide and violated natural‑justice principles. The State of Jharkhand suspended him, held departmental inquiries, found him guilty of indiscipline and false allegations, and ordered his compulsory retirement. The High Court dismissed his writ petition and letters‑patent appeal. On appeal, the Supreme Court held that he was indeed appointed as a Clerk, that Sections 72 and 74 of the Bihar Reorganisation Act empowered Jharkhand to transfer him and to initiate disciplinary action, and that the order of compulsory retirement was neither illegal nor arbitrary. Consequently, the appeal was dismissed.

Issues considered

The applicability of Sections 72 and 74 of the Bihar Reorganisation Act, 2000 to the transfer and disciplinary jurisdiction over an employee appointed by the erstwhile State of Bihar.
Whether the appellant was appointed as a Clerk or as a Law Officer/Legal Assistant.
Whether the disciplinary proceedings and order of compulsory retirement violated principles of natural justice or were mala‑fide.
Whether the State of Jharkhand had the power to impose compulsory retirement on the appellant.

Legislation cited

Bihar Reorganisation Act, 2000s. 72, s. 74

Subjects

appointmentclerklaw officerBihar Reorganisation Actcompulsory retirementdisciplinary proceedingsnatural justicemala fidetransfer of servicejurisdictionservice law

Judgment

A
PURUSHOTTAM KUMAR JHA
v.
STA TE OF JHARKHAND AND ORS.

APRIL 24, 2006
B
[MRS. RUMA PAL AND C.K. THAKKER, JJ.]

Bihar Reorganisation Act, 2000-Sections 72 and 74-Appointment of
employee as a Clerk by erstwhile State of Bihar on compassionate grounds-
Transfer of employee to the State ofJharkand after bifurcation of the States- C
Employee protesting to do the work of a Clerk contending that he was
originally appointed as Law Officer/Legal Assistant-Order of compulsory
retirement passed against the employee by the State ofJharkand after holding
disciplinary proceedings-Writ petition filed before High Court challenging
the order-Employee contending that the State of Jharkhand has not power D
and jurisdiction under the Act to· take action; and that the action of the State
was mala fide-High Court dismissed the Writ Petitio~orrectness of-
Held, the State of Jharkhand was competent to take action against the ·
employee under the Act-On facts, the employee was appointed as Clerk
since there was no sanctioned post of Law Officer/Legal Assistant-Allegation
of male fide action by the State was vague without any materials on record E
-Order of compulsory retirement passed against the employee is not illegal
or arbitrary.

Appellant, who was a practising advocate, was appointed as a Field Clerk
by the State of Bihar on compassionate grounds following the death of his F
father. After the bifurcation of the erstwhile State of Bihar under the Bihar
Reorganisation Act, 2000, the appellant was transferred to the State of
Jharkhand. Since the appellant was given clerical work, the appellant made
several representations to respondents contending that he had worked as Law
Officer/Legal Assistant from the date of joining and that he should not be
compelled to do clerical work. The State of Jharkand withdrew the clerical G
work from the appellant and passed an order suspending him. Departmental
Enquiry was initiated against the appellant. The appellant was found guilty
and an order of compulsory retirement from service was passed.

215
H
216 SUPREME COURT REPORTS [20061 SUPP. I S.C.R.

A The appellant filed Writ Petition before High Court challenging the
order of compulsory retirement passed by the respondents. Single Judge of
the High Court dismissed the Writ Petition of the appellant. Letters Patent
Appeal preferred before the Division Bench of the High Court by the appellant
was also dismissed.

B In appeal to this Court, the appellant contended that he had worked as
Law Officer/Legal Assistant from the date of joining the service and that the
action of the respondents was illegal in treating him as a Clerk; that the action
of the respondents was illegal under Section 72 of the Bihar Reorganization
Act, 2000 in transferring him to the State of Jharkhand; that the State of
C Jharkand had no power and jurisdiction to order compulsory retirement since
he was originally appointed by the State of Bihar; that the actions of the
respondents in initially not allowing him to join and thereafter depriving him
of even the clerical work was ma/a fide with oblique motive to punish him;
and that he was not given either any notice or any opportunity to defend himself
and hence the action of the respondents in passing the order of compulsory
D retirement was violative of the principles of natural justice.

Dismissing the appeal, the Court

HELD: I. I. On the basis of Sections 72 and 74 of the Bihar
Reorganisation Act, 2000, the Division Bench held that the action of the
E respondents in transferring the appellant to the State of Jharkhand as Clerk
could not be held illegal, unlawful or otherwise improper. The appellant was
serving in and posted within the territory forming part of State of Jharkhand
as per the order passed by the Central Government provisionally. The State
of Jharkhand, therefore, was competent to initiate proceedings against the
F appellant which was done and no fault can be found in the said action of the
State of Jharkhand. 1223-E-F]

1.2. On the basis of documentary evidence, the High Court recorded a
finding that the appellant was appointed as a Clerk on compassionate ground.
The appellant was never appointed as Legal Assistant/Law Officer. From the
G affidavits filed by the respondents, it is clear that there is no sanctioned post
of Law officer/Legal Assistant and clerks use to get information relating to
pending cases of the Department in the High Court and other persons had
also worked in the capacity. The High Court was right in holding that the
appointment of the appellant was as Clerk, he could be asked to discharge
duties iu clerical capacity. The High Court was justified in holding that the
H
PURUSHOTTAM KUMAR JHA v. STATE OF JHARKHAND [THAKKER, J.] 217

appellant could not have claimed designation as Law Officer/Legal Assistant. A
(225-D-F\

1.3. On the basis of evidence, it cannot be said that by taking the action
of compulsorily retiring the appellant from services, the respondents had
committed any illegality. If, considering the material on record, it was held
that the charges levelled against the appellant as to (i) indiscipline and non- B
compliance and disobedience of the orders of higher officials; and (ii) levelling
baseless and uncalled for allegations against superior officers were, proved
and an order of compulsory retirement had been passed against him, the said
action cannot be declared illegal, arbitrary or contrary to law. [225-B-CI

1.4. Whenever allegations as to malafides have been levelled, sufficient C
particulars and cogent materials making out prima facie case must be set
out in the pleadings. Vague allegation or bald assertion that the action taken
was malafide and malicious is not enough. In absence of material particulars,
the court is not expected to make 'fishing' inquiry into the matter. The burden
of proving mala fides is on the person making the allegations and such burden D
is 'very heavy'. Malice cannot be inferred or assumed. Such a charge can
easily be made than made out' and hence it is necessary for courts to examine
it with extreme care, caution and circumspection. In the absence of specific
materials, the High Court was right in not upholding the contention that the
action was mala fide. The allegations are vague, general and casual. No
particulars have been placed on record. (225-H; 226-A-B; C-D] E
Gu/am Mustafa v. State of Maharashtra, (1976] 1 SCC 800 and Ajit
Kumar Jog v. Indian Oil Corporation, (2005( 7 SCC 764, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2234 of2006.
F
From the Final Judgment and Order dated 2-12-2003 of the High Court
of Jharkhand at Ranchi in LPA No. 488/2003.

Petitioner-in-person

Ashok Mathur, Anup Banerjee and B.B. Singh, (NP) for the Respondents. G
The judgment of the Court was delivered by

C.K. THAKKER, J. Leave granted.

The present appeal arises out of judgment and order dated July 14, 2003
passed by a Single Judge of High Court of Patna, in Civil Writ Jurisdiction H
218 SUPREME COURT REPORTS (2006] SUPP. I S.C.R.

A Case No. 7 I I of 2003 dismissing the petition filed by the petitioner-appellant
and confirmed by the Division Bench of the said High Court on December 2,
2003 in Letters Patent Appeal No. 488 of 2003.

To appreciate the controversy raised in the present appeal, few relevant
facts may be stated:
B
The appellant was appointed as Field Clerk in the pay scale of Rs. 1200-
1800 on June I0, 1996 on compassionate ground following the death of his
father on February 19, 1990 while working in the Co-operative Department as
Co-operative Extension Officer at Lakhaun, Madhubani. The appellant joined
C on the same day in the office of the Assistant Registrar, Co-operative Societies,
Benipatti, Madhubani, Bihar. By an order dated December 30, 1996, the appellant
was transferred in the Office of the Registrar, Co-operative Societies, Patna,
Bihar and deputed for monitoring legal work. By another order dated April 4,
1997, the appellant was posted in the office of the Registrar, Co-operative
Societies, Patna, Bihar for legal work.
D
It was, however, the case of the appellant that he was treated as Legal
Assistant and was allowed to work in the capacity of Legal Assistant. In an
Identity Card issued by the Bihar Government, the appellant was described
as 'Legal Assistant' since the appellant was practising Advocate in the High
Court of Patna before joining the service. An order was issued on September
E 14, 1998 by the Secretary to Government, Department of Co-operation by
which the appellant, Legal Assistant, Office of the Registrar, Co-operative
Societies was authorized by the Government to obtain information from the
Office of the Advocate General, High Court of Patna relating to Co-operative
Department about pending cases in the High Court. A Committee headed by
F the Additional Secretary, Department of Co-operation recommended the name
of the appellant as departmental lawyer/Law Officer to get information as to
pending cases in the High Court of Patna and to suggest to the Government
to curb misuse of public fund.

By the Bihar Reorganization Act, 2000 (hereinafter referred to as 'the
G Act'), the erstwhile State of Bihar was bifurcated into two States; (I) State
of Bihar; and (2) State of Jharkhand. By an order dated November 14, 2000,
the appellant was provisionally transferred to the State of Jharkhand in the
Office of the Registrar, Co-operative Societies, Ranchi, Jharkhand with effect
from November 15, 2000.

H It was the case of the appellant that he was illegally described as Clerk,
PURUSHOTTAM KUMAR JHA v. STATE OF JHARKHAND [THAKKER, J.]219

though all throughout he had worked as Law Officer and Legal Assistant from A
the date of joining. The appellant, in the circumstances, sent several letters
and representations to the respondents, requesting him to designate him as
Law Assistant. He also stated that after the Home Department of the
Government of Bihar had issued identity card describing him as Legal Assistant,
it was not open to the respondents to treat the appellant as Clerk. The
appellant, therefore, made an application to reconsider his case and to re- B
transfer him to the State of Bihar, but no action was taken by the respondents
on that application. The appellant, in the circumstances, was constrained to
approach the High Court by filing a Writ Petition. The learned Single fodge
issued certain directions which were also not complied. with. When the
appellant went to report in Jharkhand on February 15, 2001, he was not C
allowed to join. Again, he approached the Court by filing a Writ Petition and
only on June 7, 2001, his joining report was accepted and he was asked to
work. Since the appellant was given clerical work, he represented that all
throughout he had worked as Law Officer and he should not be compelled
to do cle~ical work but nobody paid any heed to the prayer. Even clerical work
was withdrawn from him on October 13, 2001. The appellant was suspended D
by an order dated June I 0, 2002. Departmental inquiry was instituted against
him. No opportunity was afforded to the appellant to defend himself in the
departmental proceedings and finally he was informed on January 6, 2003 that
he was guilty and an order of compulsory retirement from service was passed.
,·· In the order, it was stated that except suspension allowance, the appellant E
would not be entitled to anything.

Being aggrieved by the order of compulsory retirement, the appellant
approached the High Court by filing a writ petition. The learned Single Judge,
after perusing the affidavits and hearing the parties, held that departmental
proceedings were conducted in accordance with law, inquiry report was F
submitted by the Inquiry Officer recording that the charges leveled against
the appellant were established. The learned Single Judge, therefore, dismissed
the petition holding that the impugned action deserved no interference.
According to the learned Single Judge, the conduct of the appellant, right
from the date of his appointment was not proper. It was also observed that G
the appellant was practising in the High Court of Patna and he wanted to
continue in the said State in the capacity of Legal Assistant although his
appointment was as Clerk on compassionate ground. It was on that count that
he refused to discharge his duties as Clerk and hence the action was taken
against him and there was no justification to interfere with the order of
compulsory retirement. Accordingly, the petition was dismissed. H
220 SUPREME COURT REPORTS [2006[ SUPP. I S.C.R.

A Against the said order passed by the learned Single Judge, the appellant
preferred an intra-court appeal. The Division Bench also considered the
contentions raised by the appellant and observed that the appellant was
appointed as Clerk on compassionate ground by the Divisional Joint Registrar,
Co-operative Societies, Darbhanga, Bihar. Due to bifurcation of States, he was
provisionally allotted to Jharkhand State and was transferred in the office of
B the Registrar, Co-operative Societies, Ranchi. The Bench held that the action
taken by the State of Jharkhand was in consonance with law and the said
State was competent to take such action. It was also observed by the Bench
that the impugned order of compulsory retirement was in consonance with the
Bihar Service Code and the appellant could not make grievance against the
C said action. The contention that the disciplinary proceedings had been initiated
against the appellant with ma/a fide intention and oblique motive and were,
therefore, malicious and biased was also negatived by the Division Bench. It
was observed by the Division Bench that the appellant was appointed as a
Clerk and he was asked to perform clerical work. But it was the appellant who
refused to do clerical work and that is how the said work was entrusted to
D one Smt. Hiramati Kumari and it was not true that the respondents had
withdrawn the work though he was ready and willing to perform clerical work.
Regarding ma/a fide, the Court stated that no specific allegations had been
leveled by the appellant in the writ petition against named officers nor it was
stated as to how they were against the appellant. They were also not made
E parties and no opportunity to the other side was afforded to controvert those
allegations. Accordingly, the Letters Patent Appeal was dismissed confirming
the order passed by the learned Single Judge.

Against the order passed by the Division Bench of the High Court, the
appellant approached this Court by filing Special Leave Petition on February
F 20, 2004. Notice was issued on March 20, 2004 by this Court. On September
20, 2004, the following order was passed by this Court:

"The petitioner and the counsel appearing on behalf of the
respondent will consider whether the petitioner may be allowed to
rejoin the service with the respondent No. I as a Clerk subject to the
G petitioner's (i) withdrawing all allegations made by him in
correspondence, pleadings or otherwise against the officers of the
respondent No. J, (ii) undertaking to the respondent No. I to discharge
functions as a Clerk without insisting on being given work of looking
after legal matters and (iii) without the petitioner being entitled to any
H pay for the period between the date of compulsory retirement and the
PURUSHOTTAM KUMAR JHA v. ST ATE OF JHARKHAND [THAKKER, J.] 221

date of his rejoining and treating such period as leave without pay. A
The matter is adjourned to 25th October, 2004. The decision of
the respondent No. I will be communicated to this Court four weeks
hence when the matter will be placed on record. It is being made clear
that if the proposals are not acceptable, the matter will be heard and
disposed of on merits." B
A similar order was passed again on October 25, 2004. In an order
dated February 4, 2005, this Court noted; "The petitioner has failed to file
any undertaking as required by this Court. Therefore, the earlier order passed
by this Court is recalled." The matter was thereafter placed for final hearing.
c
We have heard Mr. Purushottam Kumar Jha, appellant - party in person

- and learned counsel appearing for the respondents. The appellant contended
that the High Court had committed an error of law as well as jurisdiction in
holding that he was appointed as Clerk. The appellant, from the first day, had
worked as Law Officer/Legal Assistant and it was, therefore, not open to the
respondents to treat him as Clerk directing him to do clerical work. The said
D
action was clearly illegal and the High Court ought to have. directed the
authorities to treat the appellant as Legal Assistant. He also submitted that
the appellant ought not to have been transferred to the State of Jharkhand.
Since no final decision, as required by Section 72 of the Act had been taken,
the action was bad as respondent No. 5 had no .administrative control over E
the appellant. His application for re-transfer to the State of Bihar had not
been considered. The omission on the part of the respondents was illegal
and unlawful. According to the appellant, since he was appointed by the
State of Bihar, the State of Jharkhand was not competent to take action
against him and all orders passed including the order of compulsory retirement,
were without any authority, power and jurisdiction and were liable to be set F
aside. According to the appellant, he was not allowed to join though he was
ready. He was illegally deprived of even clerical work which action was not
at all justified. He was placed under suspension. All these actions had been
taken ma/a-fide and with oblique motive to punish the appellant. The High
Court ought to have appreciated all these facts and granted relief in his G
favour. According to the appellant, no order of compulsory retirement could
have passed against him as no opportunity had been given to him. He had
not received notice nor he could defend himself and the action was violative ..
of principles of natural justice and fair play and the same. deserves to be set
aside.
• H
222 SUPREME COURT REPORTS [2006] SUPP_ I S.C.R.

.A The learned counsel for the respondents, on the other hand, supported
the order passed by the respondents and submitted that the action was in
consonance with law. After following proper procedure, the appellant was
compulsorily retired by way of punishment. He challenged the said order and
the learned Single Judge as well as Division Bench of the High Court held
B the action legal and valid and no relief was granted to him. No interference
is called for and the appeal may be dismissed.

Having heard the appellant-party in person and the learned counsel for
the respondents, in our opinion, it cannot be said that by dismissing the Writ
Petition as also Letters Patent Appeal, the High Court has committed any
C error or law or of jurisdiction which requires interference by this Court. On
the basis of documentary evidence, the High Court recorded a finding that

-
the appellant was appointed as a Clerk on compassionate ground. The appellant
was never appointed as Legal Assistant/Law Officer. Since the appellant was
a Clerk, he was required to do clerical work. In our opinion, the High Court
was right in holding that when the appointment of the appellant was as Clerk,
D he could be asked to discharge duties in clerical capacity.
So far as the allocation to the State of Jharkhand is concerned, the
Division Bench, in our opinion, rightly referred to. Sections 72 and 74 of the
Act, which are relevant and material. They read thus:

E 72. Provisions relating to services in Bihar and Jharkhand:

(I) Every person who immediately before the appointed day is serving
in connection with the affairs of the existing State of Bihar shall, on
and from that day provisionally continue to serve in connection with
the affairs of the State of Bihar unless he is required, by general or
F special order of the Central Government to serve provisionally in
connection with the affairs of the State of Jharkhand:

Provided that no direction shall be issued under this section after the
expiry of a period of one year from the appointed day.

G (2) As soon as may be after the appointed day, the Central Government
shall, by general or special order, determine the successor State to
which every person referred to in sub-section (I) shall be finally
allotted for service and the date with effect from which such allotment
shall take effect or be deemed to have taken effect.

H ..
PURUSHOTTAM KUMAR JHA v. ST ATE OF JHARKHAND [THAKKER, J.] 223

(3) Every person who is finally allotted under the provis.ions of sub- A
section (2) to a successor State shall, if he is not already serving
therein be made available for serving in the successor State from such
date as may be agreed upon between the Governments concerned or
in default of such agreement, as may be determined by the Central
Government.
B
74. Provisions as to continuance of officers in same post:

Every person who, immediately before the appointed day is holding
or discharging the duties of any post or office in connection wi.th the
affairs of the existing State of Bihar in any area which on that day falls
within any of the successor States shall continue to hold the same C
post or office in that successor State, and shall be deemed, on and
from that day, to have been duly appointed to the post or office by
the Government of, or any other appropriate authority in, that successor
State: Provided that nothing in this section shall be deemed to prevent
a competent authority, on and from the appointed day, from passing D
in relation to such person any order affecting the continuance in such
post or office.

On the basis of the above two provisions, the Division Bench held that
the action of the respondents in transferring the appellant to the State of
Jharkhand as Clerk (Lipik) could not be held illegal, unlawful or otherwise E
improper. The appellant was serving in and posted within the territory forming
part of State of Jharkhand as per the order passed by the Central Government
provisionally. The State of Jharkhand, therefore, was competent t_o initiate
proceedings against the appellant which was done and no fault can be found
in the said action of the State of Jharkhand.
F
We have also gone through the affidavits in reply filed by the contesting
respondents. In the counter affidavit on behalf of respondent Nos. 2, 7 and
8, it was_ stated by the Joint Registrar (Co-operative), Government of Bihar,
Patna that the appellant was initially appointed as the Field Clerk in the
unrevised scale of Rs.1200-1800 on compassionate ground and he joined as
a Clerk on June 10, 1996 at Benipatti. It was stated that on his representation, G
the appellant was transferred in the Office of Joint Registrar, Co-operative
Societies, Patna and deputed in the office of Registrar, Co-operative Societies,
Patna for discharging ministerial legal work. According to the deponent, there
was no post, either· created or sanctioned, of Law Officer or Legal Assistant
in the Co-operative Department. In the light of the order of the Chief Secretary, H
•·
224 SUPREME l'OURT REPORTS [20061 SUPP. 1 S.C.R.

A Government of Bihar, a Legal Cell was constituted in every Department of the
Secretariat and accordingly Co-operative Department had also constituted a
legal cell and time to time employees were deputed for the purpose of obtaining
information regarding cases of the Department pending in the High Court.
Those employees to whom legal work was allotted used to do the said work
B since there was no sanctioned post of Law Officer/Legal Assistant. It was
also stated that other persons had similarly worked in the said capacity but
none of them ever claimed to be Law Officer/Legal Assistant.

It was then stated that as a result of bifurcation of State of Bihar, the
appellant was provisionally transferred to the Office of the Registrar, Co-
C operative Societies, Ranchi in Jharkhand. The said action was in accordance
with law and in consonance with the provisions of the Act.

A counter affidavit was also filed by the Deputy Secretary, Co-operative
Department, Government of Jharkhand, Ranchi on behalf of respondent Nos.
4 and 5 contending that the actions taken against the appellant were legal and
D lawful. It was asserted that neither in the State of Bihar nor in the State of
Jharkhand there was sanctioned post of Legal Assistant/Law Officer and the
appellant was appointed as a Clerk and continued to remain as such. His
placement with the State of Jharkhand was in accordance with law as per the
recommendations of the State Advisory Committee and he could not have
raised any objection against the said action. Regarding withdrawal of work
E from the appellant, deponent stated that the appellant was assigned clerical
work but he replied that he was not interested to do clerical work. In view
of the said fact, the work assigned to the appellant was entrusted to Smt.
Hiramati Kumari. It was, therefore, not a case of withdrawal of work from the
appellant as contended by him. It was then stated by the deponent that the
F appellant made allegations against almost all higher officers of the Department.
He was also habitual in giving illegal threats as being a practising advocate
in the High Court of Patna before joining the clerical job on compassionate
ground. He was always non co-operative. It was, therefore, submitted that the
action taken against the appellant was legal and lawful.

G A counter was also filed on behalf of respondent No. 9 by the District
Co-operative Officer-cum-Conducting Officer, Ranchi, Jharkhand. He stated
that he was appointed as Conducting Officer in the departmental proceedings
initiated against the appellant. According to him, in the departmental
proceedings, the appellant was given all possible opportunities but the
H appellant did not cooperate with the proceedings. He refused to accept the
•
PURUSHOTT AM KUMAR JHA v. ST ATE OF JHARKHAND [THAKKER, J. ]225

notice served through Peon of the Department. The notice was also published A
in the daily newspaper (Prabhat Khabar). The appellant intentionally. and
purposely got himself away from participating in departmental proceedings.
On the basis of relevant documents and examination of record, the proceedings
had been concluded and an order of punishment of compulsory retirement
was passed which could not be termed illegal or unlawful.
B
On the basis of evidence, we are of the view that it cannot be said that
by taking the action of compulsorily retiring the appellant from services, the
respondents had committed any illegality. If, considering the material on
record, it was held that the charges leveled against the appellant as to (i)
indiscipline and non-compliance and disobedience of the orders of higher C
officials; and (ii) levelling baseless and uncalled for allegations against superior
officers were proved and an order of compulsory retirement had been passed
l against him, to us, the said action cannot be declared illegal, arbitrary or
objectionable.

The learned Single Judge as well as the Division Bench had held that D
the appellant was appointed as Clerk on compassionate ground and not Law
Officer/ Legal Assistant. From the affidavits filed on behalf of respondents,
it is clear that there is no sanctioned post of Law Officer/Legal Assistant and
Clerks use to get information relating to pending cases of the Department in
the High Court and other persons had also worked in that capacity. The High
Court was, therefore, in our opinion, justified in holding that the appellant E
could not have claimed designation as Law Officer/Legal Assistant. So far as
the State of Jharkhand is concerned, in our view, the Division Bench was right
in holding that under the Act, his services could be allotted to the State of
Jharkhand and that action was taken at the instance of Advisory Committee.
The said action was not in contravention of any provision of the Act and F
proceedings initiated by the State of Jharkhand could not, therefore, be
objected.

As to ma/a-fide exercise of power, the_ High Court held that neither
sufficient particulars were placed on record nor the officers were joined_ as
party respondents so as to enable them to make the position clear by filing G
a counter affidavit. In the absence of specific materials and in absence of
officers, the Court was right in not upholding the contention that the action
was ma/a-fide.

It is well settled that whenever allegations as to ma/a }ides have been
Ir ·H
226 SUPREME COURT REPORTS (2006] SUPP. I S.C.R.

A leveled, sufficient particular~ and cogent materials making out prima facie
case must be set out in the pleadings. Vague allegation or bald assertion that
the action taken was ma/a fide and malicious is not enough. In absence of
material particulars, the court is not expected to make 'fishing' inquiry into
the matter. It is equally well-established and needs no authority that the
B burden of proving ma/a fides is on the person making the allegations and
such burden is 'very heavy'. Malice cannot be inferred or assumed. It has
to be remembered that such a charge can easily be 'made than made out' and
hence it is necessary for courts to examine it with extreme care, caution and
circumspection. It has been rightly described as 'the last refuge of a losing
litigant'. [Vide Gu/am Mustafa v. State of Mahrashtra, [ 1976] I SCC 800 and
C Ajit Kumar Jog v. Indian Oil Corporation, [2005] 7 SCC 764).
In the instant case, the allegations are vague, general and casual. No
particulars, much less sufficient particulars have been placed on record. The
High Court considered the contention in the light of settled legal position and
rejected the argument put forward by the appellant. We see no infinnity in the
D reasoning of the High Court. The conclusion arrived at by the High Court
deserves no interference.

For the foregoing reasons, in our opinion, the order dated 6th January,
2003 compulsorily retiring the appellant cannot be held illegal, unlawful or
contrary to law and neither the Single Judge nor the Division Bench had
E committed any error of law in dismissing the petition and the Letters Patent
Appeal of the appellant.

The appeal, therefore, deserves to be dismissed and it is accordingly
dismissed. In the facts and circumstances of the case, however, there shall
F be no order as to costs.

Before parting with this matter, we may state that this Court, taking into
account the position of the appellant. particularly when he was appearing as
party in person, passed orders as to whether he could be reinstated or taken
back in service on his withdrawing allegations against respondents and on
G filing an undertaking that he would work as Clerk without insisting on being
given work of looking after legal matters and without insisting for salary
during the intervening period. Unfortunately, the matter could not be settled.
We are, therefore, constrained to decide the case on merits. We may, however,
observe that in view of the earlier order passed by this Court, it is still open
to the respondents to consider the case of the appellant favourably keeping
H
PURUSHOTTAM KUMAR JHA v. STATE OF JHARKHAND [THAKKER, J.)227

in view the family circumstances which the appellant has narrated before this A
Court. Dismissal of this appeal would not come in the way of respondents
in taking such sympathetic view by showing magnanimity in favour of the
appellant if possible.

With the pronouncement of this judgment, the interlocutory application
No.2 filed by the appellant does not survive. B
B.S. Appeal dismissed.