Holding

Both the Central Government and the Director General of the BSF may act under Rule 20(2) to deem a trial inexpedient or impracticable and recommend termination, making the removal order valid.

Summary

The case concerned the removal of a Deputy Inspector General of the Border Security Force (BSF), Ashok Kumar, for misconduct during a raid, including falsifying his presence, suppressing seizure details and staging a fake encounter. A Staff Court of Inquiry found him delinquent and the Director General (DG) of BSF, deeming a trial by a Security Force Court inexpedient, recommended his resignation. The Central Government, invoking Section 10 of the BSF Act and Rule 20(5), removed him from service without pension. The High Court held that only the Central Government could act under Rule 20(2), rendering the removal invalid. The Supreme Court reversed, holding that both the Central Government and the DG BSF are empowered under Rule 20(2) to consider the expediency of trial and recommend termination, and that the order was passed after proper application of mind with no mala fides. Consequently, the Union of India's appeal was allowed and the delinquent officer's appeal dismissed.

Issues considered

Whether Rule 20(2) of the Border Security Force Rules, 1969 authorises only the Central Government or also the Director General to consider the expediency of trial and recommend termination of service.
Whether the removal of the officer without pension under Section 10 of the Border Security Force Act, 1968 and Rule 20(5) was valid.
Whether the order of removal was passed with proper application of mind and free of mala fides.

Legislation cited

Army Act, 1950s. 19
Army Rules, 1954s. Rule 14
Border Security Force Act, 1968s. 10
Government of India (Allocation of Business) Rules, 1961s. Rule 2
Transaction of Business Rules, 1961s. Rule 8

Subjects

Service lawTermination of serviceMisconductBorder Security ForceRule 20Central GovernmentDirector GeneralApplication of mindMala fidesSecurity Force CourtRemoval without pension

Judgment

UNION OF INDIA AND ORS. A
v.
ASHOK KUMAR AND ORS.

OCTOBER ! 8, 2005

[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] B

Service Law:

Border Security Force Rules, 1969:
c
Rule 20-Misconduct-Termination of service of Officers-By Central
. Government-During raid in the hideout of militants two militants
apprehended-Huge quantity of arms, ammunitions and explosives and
. household articles including gold ornaments were recovered-Delinquent
Officer, though not present on the spot, had falsely shown his presence at the D
scene of operation and search-Recovery of arms, ammunition, gold ornaments
etc. not reflected in seizure report sent to higher authorities-To cover up
these lapses a fake encounter was staged and a report sent indicating recovery
of some gold ornaments-A Staff Court of inquiry found delinquent Officer
responsible for act of omission and commission-Director General BSF called
upon delinquent Officer to resign on the ground that trial by Security Force E
Court was inexpedient and impracticable-Central Government .removed "
delinquent Officer from service without pensionary benefits under S. I 0 r!w R.
20(5)-High Court held that only Central Government could form the opinion
that trial was inexpedient or impracticable and not the DG BSF and, therefore,
removal of delinquent Officer from service was in violation of S. IO' r!w R. F
20(5)-Correctness of-Held: Both the Central Government and DG BSF can
act in terms of Rule 20(2)-Therefore, the High Court's conclusion that the
Central Government is the on£v authority to decide whether trial is inexpedient
or impracticable is clearly indefensible-High Court's judgment set aside-
Border Security Force Act, 1968, S. 10-Army Act. 1950, S. 19-Army Rules,
1954, R. 14. G
Word and Phrases:

"As the case may be "-Meaning of-Jn the context of Rule 20(2) of the
Border Force Rules, 1969.
317 H.
318 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A The respondent-delinquent Officer being the Deputy Inspector
General Border Security Force (BSF) was having supervisory power over
the Commandant who raided the hideout of militants. During the raid two
militants were apprehended and huge quantity of arms, ammunitions and
explosives and household articles including gold ornaments were
B recovered. The recovery of arms, ammunition and explosives and gold
ornaments were not reflected in the seizure report sent to the higher
authorities. The respondent, though not present at the spot, had falsely
shown his presence at the scene of operation and search with a view to
claiming undue credit of achievements of the operation. To cover up these
lapses another encounter was shown to have taken place and a report
C regarding the fake encounter was sent, which indicated the recovery of
some gold ornaments.

Thereafter, a Staff Court of Inquiry was held and the delinquent
Officer was found responsible for various acts of omission and commission.
The Director General BSF opined that it was neither expedient nor
D practicable to conduct the trial of the respondent-delinquent Officer by a
Security Force Court and, therefore, under Rule 20(4) of the Border
Security Force Rules, 1969 recommended to the Central Government that
the respondent be called upon to resign from service.

The Government of India in exercise of power conferred under
E Section IO of the Border Force Security Act, 1968 read with Rule 20(5) of
the Rules removed foe delinquent Officer from services without pensionary
benefits.

However, the High Court held that the removal of the delinquent
F Officer from service was in"violation of the provisions contained in Section
I 0 of the BSF Act read with Rule 20 of the BSF Rules. Hence the appeal.

Allowing the appeal, the Court

HELD: I. The High Court is plainly in error in holding that it is r•·
.,,__
G only the Central Government which is competent to act in terms of Rule
20(2) of the Border Security Force Rules, 1969. The expression "as the
case may be" would otherwise be rendered superfluous. Both the Central
Government and the Director General BSF can act in terms of Rule 20(2).
The High Court overlooked the salient factor that any other interpretation
would render reference to the Director General meaningless. [328-B]
H
U.0.1. v. ASH OK KUMAR 319
2. A bare reading of Rule 20 makes the position clear that both the A
Director General and the Central Government can act in different
situations and consideration by the Director General is not ruled out. Rule
20(3) makes the position clear that the explanation is to be considered by
the Director General and only when it is directed by the Central
Government, the matte shall be submitted to the Central Government with B
the officer's defence and the recommendations of the Director General.
When the Director General finds the explanation unsatisfactory he
recommends for action. There may be cases where the Central
Government directs the Director General to submit the case. There can
be a case where the Central Government finds that the explanation is
unsatisfactory. In that case the Central Government may direct the case C
to be submitted to it At the first stage the consideration is by the Director
General. When he finds the explanation unsatisfactory, he recommends
action by the Central Government. But even if he finds the explanation
to be satisfactory, yet the Central Government can direct the case to be
submitted to it. Recommendations in terms of Rule 20(4) are made by the D
Director General and the final order under Rule 20(5) is passed by the
Central Government. The expression "as the case may be" is used in Rule
20(2) and (5). It obviously means either of the two. It is to be further noted
that the order in terms of R1•le 20(5) is passed by the Central Government.
But the enquiry can be either by the Central Government or the Director E
General, as the case may be. Where the report of the officer's misconduct
is made by the Director General, the matter is to be placed before the
Central Government and in all other cases the consideration is by the
Director General. (328-C, D, E, F, GI

3. Therefore, the High Court's conclusions t,hat the Central F
Government is the only authority to consider the matter whether holding
of trial is inexpedient or impracticable is clearly indefensible. (329-BJ

Shri Balaganesan Metals v. M.N. Shanmugham Chetty, (19871 2 SCC
707, relied on.
G
4.1. The plea of the delinquent Officer that the order suffers from
the vice of non-application of mind is clearly untenable. Similarly, the plea
of malajides does not appear to have been pressed before the High Court,
and the grievance related to other respondent and the personal allegations
of ma/a fides do not appear to have been urged. (329-DI H
4.2. It cannot be overlooked that the burden of establishing malajides
320 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

··A is very heavy on the person who alleges it. The allegations of ma/a fides
are often more easily made than proved and the very seriousness of such
allegations demand proof of a high order of credibility. (329-H( .

E.P. Royappa v. State of Tamil Nadu, AIR (1974) SC 555, Indian
Railway Construction Co. Ltd [2003( 4 SCC 579 and Gu/am Mustafa v. State
B of Maharashtra, (1976) l sec 800, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4792of1999.

From the Judgment and Order dated 21.4. 99 of the Jammu and Kashmir
C High Court in L.P.A.(SW) No. 631 of 1999.
WITH

C.A. No. 6389 of 2005.

A. Sharan, Additional Solicitor General, Ms. Indra Sawhney, Amit
D Anand Tiwari, Ms. Salinee Ranjan, Ms. Sushma Suri and B.V. Balaram Das
for the Appellant in C.A. No. 4792/99.

L. Nageshwara Rao, Devendra Singh, Ms. Sangeeta Manda!, Atish
Kumar Vatts, Jayanth Muthuraj and Pritam Baruah for the Appellanrin C.A.
E No. 6389/2005 and Respondent in C.A. No. 4792/99.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted in S.L.P. (C) 21363 of2005 CC
No. 6855 of 1999.
F
Both these appeals have matrix in a judgment rendered by a Division
Bench of the Jammu & Kashmir High Court in a Letters Patent Appeal filed
by Ashok Kumar, the respondent in Civil Appeal No. 4792 of 1999 and the
appellant in the connected appeal. For the sake of convenience said Ashok
Kumar is described hereinafter as the 'delinquent officer'. By the impugned
G judgment the High Court held that the removal of the delinquent officer from
service was in violation of the provisions contained in Section I0 of the
Border Security Force Act, 1968 (in short 'the Act') read with Rule 20 of the
Border Security Force Rules, I969 (in short 'the Rules). The appeal filed by
the delinquent officer was allowed upsetting the judgment of the learned
H Single Judge who had dismissed the writ petition filed by the delinquent
officer.
U.0.1. v. ASHOKKUMAR [PASAYAT, J.) 321

Factual position, filtering out unnecessary details, is as follows: A
There was a raid in the house of militants on 23rd and 24th March,
1992. The delinquent officer being Deputy Inspector General in Command
was having Supervisory power over the Commandant who raided the hideout
of militants. On the night intervening 23rd and 24th March 1992 house of
one Mohd. Maqbool Dhar in Bemina Colony of Srinagar was raided by 23 B
men of the force. During the raid two militants described as 'dreaded militants'
namely Javed Ahmed Shalla and Mohd. Siddiqui Soffi were apprehended.
According to the authorities huge quantity of arms, ammunitions and
explosives and household articles including gold ornaments were recovered.
The recovery of arms, ammunition and explosives and gold ornaments were C
not reflected in the seizure report sent to higher authorities. Respondent was
not present at the spot and he indicated his presence at the scene of operation
with a view to claim undue credit of achievements of the operation. Full
quantity of seized articles was not reflected in the report. 31 major weapons
were recovered but only 22 were shown. Two pistols, five AK-56 rifles, one
rocket launcher and one Telescopic Rifle were not shown in the list of D
ammunition. Out of 31 gold ornaments 25 pieces were not shown in the list
of seized articles. Second situation Report was also sent, but the same also
did not reflect recovery of complete articles. To cover up these lapses another
encounter was shown to have taken place and a report regarding fake encounter
was sent vide No.0-7209 which indicated the recovery of some gold ornaments. E
Another report was also sent from office of delinquent officer declaring
goods which were not declared earlier. It was admitted that recovery of some
weapons was not reflected in earlier report.

Therefore, a Staff Court of Inquiry was ordered to be held on 16th
May, 1992 and the delinquent officer was found responsible for following act p
of omission and commission:

(a) Falsely showing his presence at the scene of operation and search.
(b) Failure to make any observations regarding serious omissions
and discrepancies in the unit site report and detailed report.
G
(c) Suppression of information regarding seizure of six weapons out
of nine which were not declared by the Commandant.
(d) Suppression of information regarding seizure of household items.
(e) Suppression of information regarding seizure of a substantial
quantity of gold ornaments. H
322 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A (f) Failure in supervisory duties by not giving expected directions to
the Commandant in regard to accounting and disposal of seized
items.

On 18.9.1992 Director General recorded his satisfaction that the material
witnesses connected with case will not be available and as such the trial of
B the delinquent officer before Security Force Court was inexpedient and
impracticable and opined that further retention of the delinquent officer in
service was undesirable.

On 23/25.9.1992 show-cause notice was served upon the delinquent
officer as to why his services be not terminated in accordance with Rule 20
C of the Rules. On 31.10.1992 he sent reply to the show cause notice. On
13.1.1993 Inspector General found that there was adequate evidence both
oral and documentary to prove the various charges against the delinquent
officer and he had no satisfactory explanation to the various charges and
recommended that the competent authority may call upon the delinquent
D officer to resign under Rule 20(4) or on his refusal to do so, compulsorily
retire or remove him from service with pension and gratuity. On 6.2.1993
Director General after considering the show cause notice, reply to the show
cause notice, report of the Enquiry Officer and view of Inspector General,
BSF recorded his satisfaction that it was neither expedient nor practicable to
conduct the trial and in exercise of his powers under Rule 20(4) of the Rules
E recommended to Central Government that delinquent officer be called upon
to resign from service. The recommendation of the Director General, BSF
that it was inexpedient or impracticable to hold inquiry and calling upon
delinquent officer to resign was considered by the State Minister who expressed
his view as under:-
F "It is a very serious case which has brought bad name to the BSF in
the State. I agree that the penalty of removal from service without
pensionary benefits should be imposed on Shri Ashok Kumar DIG,
BSF as proposed above. DG, BSF should also expedite imposition of
penalty against the other delinquent officers".
G The Home Minister considered the entire record of the case including
the recommendations of the desk officer, Director General, Minister of State's
opinion and thereafter, recorded his own opinion. Home Minister accorded
his approval as under:- l

H "We may first remove him from service and also not being eligible
U.0.1. v. ASHOK KUMAR [PASAYAT, J.] 323
for pension looking to the nature of the offence, I don't think this will 'A·.
be sufficient punishment. We may also prosecute him so that it may
have deterrent effect."

By order dated 1.6.1993 Government of India in exercise of power
conferred under Section IO of the Act read with Rule 20(5) of Rules removed
the delinquent officer from the services without pensionary benefits with B
immediate effect.

The delinquent officer filed a Writ Petition no.663 of 1993 in the High
Court of Himachal Pradesh challenging the order dated 1.6.1993 whereby he
was removed from service without pensionary benefits. The writ petition was
dismissed by the Himachal Pradesh High Court by order dated 3.9.1997 on C
the ground that it had no jurisdiction to deal with the writ petition. Thereafter,
the delinquent officer filed a Writ Petition no.1277/1997 in the .lammu and
Kashmir High Court. An interim order was passed on 3.9.1997 directing the
respondents in the writ petition to treat the writ petitioner to be in service
with all service benefits as he was enjoying till 2.9.1997. By order dated D /
5.2.1999 the learned Single Judge dismissed the writ petition. The learned
Single Judge's conclusions are essentially as follows:-

(i) Plea of res-judicata cannot be accepted.
(ii) Delinquent officer was given full and reasonable opportunity in
the Court of Inquiry which was conducted in terms of Chapter E
XIV of the Rules, and he was found guilty of six lapses.
(iii) The view formed by Competent Authority to dispense with
holding of General Security Force Court was on the basis of
material on record.
F
(iv) The decision to remove delinquent officer from service was not
actuated by malafide consideration.
(v) Decision taken by Home Minister suffered from no infirmity,
and against him no malice has been shown.
(vi) Rules of business which required matter to be placed before G
President of India are not applicable to the delinquent officer."

Letters Patent Appeal was filed by delinquent officer against the order
of learned Single Judge.

H
324 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A In support of the appeal, following points were urged:

(i) There is no independent or sufficient material for taking action
under Rule 20 and the material relied upon is only that which
has been collected by the Court of Inquiry, the use of which is
not permissible.
B The respondent can be tried before the Security Force Court as
the show cause notice has been served and the witnesses are also
available.
(ii) Learned Single Judge has misdirected himself in recording the
finding and maintaining that it was not expedient and practicable
c to hold inquiry.
(iii) He is a Class- I Officer of the BSF under Ministry of Home
Affairs and, therefore, as per Item No.13 of the First Schedule
read with Rule 2 of the Govt. of India (Allocation of Business)
Rules, 1961 he could only be removed by the Prime Minister
D and the President in terms of Serial No.39 of the Third Schedule
read with Rule 8 of the Transaction of Business Rules, 1961.
(iv) The authorities have removed him from service without following
the provisions of law contained in Section I 0 of the Act read
with Rule 20 of Rules, as the Central Government has neither
E recorded the satisfaction to the effect that it is inexpedient and
impracticable to hold inquiry nor formed any opinion that his
further retention in service is undesirable, for terminating the
services under Rule 20 of Rules.

The Division Bench by the impugned judgment concurred with the
F findings expressed by the learned Single Judge so far as first three points are
concerned. So far as the fourth point is concerned it was held that the Central
Government was required to record satisfaction that it was inexpedient and
impracticable to hold inquiry, and to form opinion relating to delinquent
officer for retention in service. According to the High Court the delinquent
G officer had been removed from the service without following the provisions
of Section 10 of the Act and Rule 20 of the Rules. The High Court noticed
that two authorities are authorized to act under Rule 20 of the Rules. The
procedure to be followed to terminate the services of an officer is available -
under Section 10 of the Act by the Central Government on account of
. '
misconduct. The expression "as the case may be" relates to the action to be
H taken by the Central Government and the action to be taken by the Director
U.O.l. v. ASHOK KUMAR [PASAYAT, J.) 325
General. It was held that both the authorities did not have concurrent A
jurisdiction; otherwise the expression "as the case may be" would be rendered
surplus and meaningless. Reference was made to Section 19 of the Army
Act, 1959 (in short 'Army Act') and Rule 14 of the Army Rules 1954 (in
short 'Army Rules'). It was noted that the language was in pari materia,
except the words "as the case may be" with corresponding Section and Rule B
of the Act and the Rules respectively. Therefore, it was held that use of
expression "as the case may be" is significant and indicative of two different
spheres of activity for two different authorities. The Director General was not
the appointing authority of the delinquent officer and, therefore, it was held
that only the Central Government could have taken action and not the Director
General. It was incumbent upon the Central Government to record satisfaction C
that it was inexpedient and impracticable to hold trial, before the jurisdiction
to take further action could be- assumed.

Jn support of the appeal filed by the Union of India learned Additional
Solicitor General submitted that the Division Bench of the High Court has
failed to take into account the true scope and ambit of Rule 20. It.was pointed D
out that Rule 14 of the Army Rules dealt with any category of employees,
while Rule 20 of the Rules dealt with officers. It was pointed out that the
.,Director General is given power to conduct inquiry and is also the appointing
authority.

In support of the other appeal filed by the delinquent officer, apart from E
the supporting judgment of the Division Bench it was submitted that the
Division Bench of the High Court was not justified in its conclusions so far
as the other three points are concerned. Specific allegations of mala-fides
were not dealt with by the High Court. It was also submitted that in any event
there was no applicati~n of mind by the concerned Minister, and merely on F
the opinion of the Desk Officer the order was passed. Considering the limited
scope for judicial review it was submitted that the view of the Division
Bench is irreversible. As the basic controversy revolves round the scope and
ambit of Rule 20, it is necessary to quote the same. The said Rule reads as
follows:
G
"20. Termination of service of officers by the Central Government on
account of misconduct: ( 1) When it is proposed to terminate the
service of an officer under Section 10 on account of mis-conduct, he
shall be given an opportunity to show cause in the manner specified
in sub-rule (2) against such action:-
H
326 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A Provided that this sub-rule shall not apply:-

(a) where the service is terminated on the ground of conduct which ·-
has led to his conviction by a criminal court or a Security Force
Court; or

(b) where the Central Government is satisfied that for reasons, to be
B recorded in writing, it is not expedient or reasonably practicable
to give to the officer an opportunity of showing cause.

(2) When after considering the reports of an Officer's misconduct,
the Central Government or the Director-General, as the case may be,
is satisfied that the trial of the Officer by a Security Force Court is
c inexpedient or impracticable, but is of the opinion, that the further
retention of the said officer in the service is undesirable, the Director
General shall so inform the officer together with particulars of
allegation and report of investigation (including the statements of
witnesses, if any, recorded and copies of documents if any, intended
D to be used against him) in cases where allegations have been
investigated and he shall be called upon to submit, in writing, his
explanation and defence;

Provided that the Director-General may withhold disclosure of
such report or portion thereof if, in his opinion, its disclosure is not
E in the interest of the security of the State.

(3) In the event of explanation of the Officer being considered
unsatisfactory by the Director-General, or when so directed by the
Central Government, the case shall be submitted to the Central
Government with the Officer's defenc~ and the recommendations of
F the Director-General as to the termination of the Officer's service in
the manner specified in sub-rule (4 ).

(4) When submitting a case to the Central Government under the
provision of sub-rule (2) or sub-rule (3), the Director-General shall
make his recommendations whether the Officer's service should be
G terminated, and if so, whether the officer should be, -

(a) dismissed from the service; or

(b) removed from the service; or

(c) retired from the service; or
H
U.0.1. v. ASHOKKUMAR [PASAYAT, J.) 327
(d) called upon to resign. A
(5) The Central Government, after considering the reports and the
officer's defence, if any, or the judgment of the Criminal Court, as
the case may be, and the recommendation of the Director-General,
may remove or dismiss the officer with or without pension, or retire
or get his resignation from service, and on his refusing to do so, the B
officer may be compulsorily retired or removed from the service with
pension or gratuity, if any, admissible to him."

Sub-rule (!) deals with the proposal to terminate the service under
Section I 0 on account of mis-conduct and requires an opportunity to be
given to show cause in t'1e manner stated. Operation of sub-rule(!) is ruled C
out in the category of cases covered by the proviso to sub-rule(!). Sub-rule
(2) deals with modalities to be followed when either the Central Government
or the Director-General, as the case may be, is satisfied that the trial of the
Officer by a Security Force Court is inexpedient or impracticable and yet
either the Central Government or the Director-General, as the case may be, D
is of the opinion that further retention of the concerned officer in the service
is undesirable. Thereafter, comes to the role of the Director~General. He is
required to inform the officer together with particulars of allegation and
report of the investigation, (including the statement of witnesses) if any,
which is intended to be used against the delinquent officer in cases where
allegations have been investigated. The concerned officer is given opportunity E
to submit his explanation and defence. Proviso to sub-rule (2) makes it clear
that Director-General may withhold disclosure of such report or portion thereof
if he is of the opinion that the disclosure is not in the interest of the security
of the State. Sub-rule (3) relates to consideration of the explanation furnished
by the concerned officer and the conclusions of the Director-General on · F
consideration of the explanation. Either when the explanation is considered
unsatisfactory by the Director-General or where it so directed by the Central
Government, the case shall be submitted to the Central Government with the
Officer's defence and the recommendation of the Director-General as to the
termination of the officer's service in the manner provided in sub-rule (4). G
When a case is submitted to the Central Government under the proviso to
sub-rule (2) or sub-rule (3), the Director-General is required to make
recommendation whether the officer's service should be terminated and, if
so, which of the four alternatives provided should be adopted. Sub-rule (5)
. deals with consideration of the reports and defence of the officer by the
Central Government or judgment of the Criminal Court, as the case may be, H
328 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A and the recommendation of the Director-General. The Central Government
may pass the order in terms of any of the alternatives indicated in the sub-
rule (5).

The High Court is plainly in error in holding that it is only the Central
Government which is competent to act in terms of sub-rule (2). Expression
B "as the case _may be" is otherwise rendered superfluous. Both the authorities
can act in terms of sub-rule (2). High Court overlooked the salient factor that
any other interpretation would render reference to the Director-General
meaningless.

C A bare reading of Rule 20 makes the position clear that both the Director-
General and the Central Government can act in different situations and
consideration by the Director-General is not ruled out. Sub-rule (3) makes
the position clear that the explanation is to be considered by the Director-
General and only when it is directed by the Central Government, the matter
shall be submitted to the Central Government with the officer's defence and
D the recommendations of the Director-General. When Director-General finds
the explanation unsatisfactory he recommends for action. There may be cases
where the Central Government directs the Director-General to submit the
case. There can be a case where the Central Government finds that the
explanation is unsatisfactory. In that case the Central Government may direct
E the case to be submitted to it. At the first stage the consideration is by the
Director-General. When he finds the explanation unsatisfactory, he
recommends action by the Central Government. But even if he finds
explanation to be satisfactory, yet the Central Government can direct the case
to be submitted to it. Recommendations in terms of sub-rule (4) are made by
the Director-General and the final o;der under Rule 20(5) is passed by the
F Central Government. The expression "as the case may be" is used in sub-rule
(2) and sub-rule (5). It obviously means either of the two. It is to be further
noted that the order in terms of sub-rule (5) is passed by the Central
Government. But the enquiry can be either by the Central Government or the
Director-General, as the case may be. There is another way of looking at sub-
G rule (2). Where report of the officer's misconduct is made by the Director-
General, the matter is to be placed before the Central Government and in all
other cases the consideration is by the Director-General.

The words "as the case may be" means "whichever the case may be"
or "as the situation may be". (See Shri Balaganesan Metals v. M.N.
H Shanmugham Chetty and Ors., [1987] 2 SCC 707. The expression means that
U.O.l. v. ASHOK KUMAR [PASAYAT, J.] 329
one out of the various alternatives would apply to one out of the various A.
situations and not otherwise.

Therefore, the High Court's conclusions that Central Government is the
only authority to consider the matter whether holding of trial is inexpedient
or impracticable is clearly indefensible.
B
Coming to the conclusion whether there was application of mind, the
High Court had perused the concerned file and come to the conclusion that
there was independent application of mind in passing the order of removal.
Though in the appeal filed by the delinquent officer the order of removal is
assailed on the ground that only the Desk Officer's opinion was endorsed
without application of mind, we do not find the situation to be so. Copies of C
the entire file were produced before us. It is clearly indicative of the fact that
though the Desk Officer's opinion was noted, there was independent
application of mind and, therefore, the plea of the delinquent officer that the
order suffers from the vice of non-application of mind is clearly untenable.
Similarly, we find the plea of mala-fides does not appear to have been pressed D
before the High Court, and grievance related to other respondents and the
personal allegations of mala1ides do not appear to have been urged.

Doubtless, he who seeks to invalidate or nullify any act or order mu"st
establish the charge of bad faith, an abuse or a misuse by the authority of its·
powers. While the indirect motive or purpose, or bad faith or personal ill-will E
is not to be held established except on clear proof thereof, it is obviously
difficult to establish the state of a man's mind, for that is what the employee
has to establish in this case, though this may sometimes be done. The difficulty
is not lessened when one has to establish that a person apparently acting on
tlie legitimate exercise of power has, in fact, been acting ma/a fide in the F
sense of pursuing an illegitimate aim. It is not the law that ma/a fide in the
sense of improper motive should be established only by direct evidence. But
it must be discernible from the order impugned or must be shown from the
established surrounding factors which preceded the order. If bad faith would
vitiate the order, the same can, in our opinion, be deduced as a reasonable
and inescapable inference from proved facts. (S. Pratap Singh v. State of G
Punjab, AIR 1964 SC 72). It cannot be overlooked that burden of establishing
ma/a fides is very heavy on the person who alleges it. The allegations of
ma la fl des are often more easily made than proved, and the very seriousness
of such allegations demand proof of a high order of credibility. As noted by
this Court in E. P. Royappa v. State of Tamil Nadu and Anr., AIR (1974) SC H
330 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A 555, Courts would be slow to draw dubious inferences from incomplete facts
placed before it by a party, particularly when the imputations are grave and
they are made against the holder of an office which has a high responsibility
in the administration. (See Indian Railway Construction Co. Ltd v. Ajay
Kumar, [2003] 4 SCC 579).

B As observed by this Court in Gu/am Mustafa and Ors. v. The State of
Maharashtra and Ors., [1976) I SCC 800 ma/a fide is the last refuge of a
losing litigant.

That being so, the delinquent officer's appeal is sans merit.

C The inevitable conclusion is that the appeal filed by the Union of India
deserves to be allowed. The judgment of the Division Bench taking the view
contrary to that of learned Single Judge in its analysis of Rule 20 deserves
to be set aside, which we direct Similarly, the other appeal filed by the
delinquent officer lacks merit and is dismissed. In the peculiar circumstances
D of the case, parties are directed to bear their respective costs.

V.S.S. Appeal allowed.