Holding

The Supreme Court set aside the award of damages, holding that the plaintiff failed to establish malice or malicious prosecution and therefore was not entitled to the claimed damages.

Summary

The respondent, a Superintending Engineer of the West Bengal State Electricity Board, was suspended pending disciplinary proceedings that were later quashed by the High Court for denial of a reasonable hearing. He subsequently sued the Board for damages, claiming harassment and loss of reputation, and the trial court awarded Rs.50,000 each for harassment and reputation loss, treating the claim as arising from malicious prosecution. The High Court upheld the award, but the Supreme Court held that the plaintiff had not established the elements of malicious prosecution or malice, and the award was indefensible. Consequently, the Supreme Court set aside the High Court’s judgment and the damages award. The appeal was allowed without any order as to costs.

Issues considered

Whether the disciplinary suspension amounted to malicious prosecution.
Whether the plaintiff proved malice or wrongful intent necessary for damages.
Whether damages for harassment and loss of reputation can be awarded in a service disciplinary case absent proof of malicious prosecution.
Whether the High Court erred in treating the harassment award as damages for malicious prosecution.

Subjects

service lawdisciplinary suspensionmalicious prosecutionmalicedamagesharassmentloss of reputationnatural justicecivil suit

Judgment

A WEST BENGAL STATE ELECTRICITY BOARD
v.
DILIP KUMAR RAY

NOVEMBER 24, 2006

B [ARIJIT Pf.SAYAT ANDLOKESHWAR SINGHPANTA,JJ.]

Service Law:

Suspension-Malice and malicious prosecution-Harassment and loss
C of reputation-Claim for damages-Superintending Engineer of the State
Electricity Board was suspended for alleged misconduct and commission of
various offences-Enquiry held and show cause notice issued proposing
several punishments--;-High Court quashed the enquiry proceedings and
directed the Board to treat the said employee on duty for the entire period
D of suspension for all purposes-Board carried out the directions-
Subsequently, the said employee filed a civil suit claiming damages for the
institution of discip!i11G1y proceedings against him by the Board-Trial court
decreed the suit and held that the employee was suspended for extraneous
reasons-The trial court awarded damages of Rs. 50,0001- for harassment
and Rs. 50, 0001- for loss of reputation-High Court upheld the award-
E Correctness of-Held: Averments made in the plaint show that they are
extremely vague and lacking in details-The award for damages is clearly
indefensible-The High Court's judgment suffers fi"om various infirmities-
The conclusions of the High Court are confusing, contradicto1y and do not
convey any sense-High Court's judgment set aside.
F Words & Phrases:

"Malice and malicious prosecution"-Meaning of-E'Cplained.

The respondent was a Superintending Engineer of the appellant-board.
G Disciplinary proceeding was initiated against him for alleged misconduct and
commission of various offences and he was placed on suspension. Since no
charge sheet was issued within a period of four months a writ petition was
filed by the respondent for quashing of the departmental proceedings.
Accordingly, the charge sheet was issued. As the respondent's reply was found
unsatisfactory it was decided to hold an enquiry. A show cause notice was
H 554
WEST BENGAL STATE ELECTRICITY BOARD v. DILIP KUMAR RAY 555
•'
issued proposing several punishments. A
The respondent filed a writ petition challenging the enquiry proceeding,
enquiry report and the show cause notice on the ground that the respondent
was not given a reasonable opportunity of hearing. The writ petition was
allowed with the direction that no further proceedings should be initiated
against the respondent and that he should be treated as on duty for the entire B
period of suspension for all purposes. The directions given by the High Court
had been carried out.

Subsequently, the respondent filed a civil suit claiming damages for the
institution of disciplinary proceedings against him by the appellant. The trial C
court decreed the suit and held that the respondent was suspended for
extraneous reasons. The trial court awarded damages of Rs. 50,000/- for
harassment and Rs. 50,000/- for loss of reputation. The High Court upheld
the·award as damages for harassment by treating the same as damages for
malicious prosecution causing harassment by way of mental pain etc. The
award for loss of reputation was also upheld. Hence the appeal. D
Allowing the appeal, the Court

HELD: I. Malice in the legal sense means malice such as may be
assumed from the doing of a wrongful act intentionally but without just cause
or excuse or for want of reasonable or probable cause. 1572-C) E
S.R. Venkataraman v. Union of India, AIR (1979) SC 49, relied on.

Prabodh Sagar v. Punjab State Electricity Board, [2002) 5 SCC 630,
State ofA.P. v. Govardhanlal Pitti, [2003) 4 SCC 739, Chairman and M.D.,
B.P.L. Ltd v. S.P. Gururaja, JT (2003) Supp. 2 SC 515, State ofPunjab v. UK. F
Khanna, (2001) 2 SCC 330, Abbot v. Refuge Assurance Co., (1962) 1QB432,
Jones Bros. (Hun Stanton) Ltd. v. Stevens, (1955) 1 QB 275, Lumley v. Gye,
(1853) 2 E and B 216, Bromage v. Prosser, (1825) 1 C and P 673, Shearer
Shields (1914) AC 808 and Dailison v. Cajfe1y, (1965) 1QB348, referred to.

P. Ramanatha Aiyar: "Advance Law of Lexicon"' 3rd Edn., referred to. G
2. While it is true that legitimate indignation does not fall within the
ambit of malicious act, in almost all legal inquiries, intention, as distinguished
from motive, is the all important factor. In common parlance, a malicious act
has been equated with intentional act without just cause or excuse. 1572-DJ
H
556 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A Kumaon Vikas Nigam Ltd. v. Girija Shankar Pant, [2001) 1 SCC 182,
relied on.

Jones Bros. (Hun Stanton) Ltd. v. Stevens, (1955) 1 QB 275, referred
to.

B 3. A bare perusal of the avermcnts made in the plaint show that they
are extremely vague, lacking in details and after the trial judge held that the
appellant-Board alone was responsible because it was not established that any
individual officer was responsible for it and the dispute could only have been
revealed by the high-powered enquiry which the court was incompetent to
C direct, the award for damages is clearly indefensible. The High Court's
judgment suffers from various infirmities. Firstly, it has taken a confused
view of the matter. It failed to notice that the trial court itself had held "it was
highly probable" that the plaintiff-respondent was suspended for extraneous
reasons. This conclusion is based on surmises and conjectures. This had not
been established. The High Court noted that the trial court itself held that
D the plaintiff was not entitled to damages for defamation. But while affirming
the judgment and decree, it held that the damages granted for harassment
must be read as damages for malicious prosecution causing harassment. To
say the least, all the conclusions are confusing, contradictory and do not
convey any sense. Looked at from any angle the impugned judgment of the
High Court is indefensible and is set aside. [572-F, G, H; 573-A, BJ
E
CIVIL APPELLATE JURJSDICTION : Civil Appeal No. 5188 of2006.

From the Judgment and Decree dated 4-2-2004 of the High Comt of
Calcutta in F.A. No.300/1997.

F M.N. Krishnamani, Deepak Bhattacharya, Chittaranjan Panda, Souragajit
Pani, Vipin Kumar Sayane and Pravir Choudhary for the Appellant.

Dipak Kumar Jena, Ghanshyam Joshi, Minakshi Jena and Pabitra Kumar
Biswal for the Respondent.

G The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.

Challenge in this Appeal is to the order passed by a Division Bench of
the Calcutta High Court dismissing appellant's appeal questioning correctness
l-l of the order passed by a learned 7th Assistant District Judge at Alipore, 24,
WESTBENGALSTATEELECTRIC!TYBOARDv. DILIPKUMARRAY [PASAYAT,.I.] 557

Parganas (South). By the judgment of the trial court the appellant and its A
functionaries were held to be liable to pay sum of Rs.1,00,000/- i.e. Rs.50,000
for harassment of the plaintiff-respondent no. I in this appeal and Rs.50,000
for loss of his reputation. The High Court upheld the judgment and decree
of the trial court.

Filtering out unnecessary details the background facts are as follows: B
Respondent no. I was an employee of the appellant No.I-Board and
disciplinary proceeding was initiated against him and a First Information
Report (in short the 'FIR') was lodged against him and others per alleged
misconduct and commission of various offences. Initially, the respondent C
No.1 was placed under suspension for alleged acts of misconduct while
functioning as the Superintending Engineer, pending investigation drawal and
disposal of the disciplinary proceedings against him. Since no charge sheet
was issued within a period of four months a writ petition was filed by the
respondent No. I for quashing departmental proceedings. The writ petition
was disposed of directing the Board to issue the charge sheet. Accordingly D
the charge sheet was issued on 17.1.1986 containing 10 charges. Respondent
No. I submitted his reply to the said charge sheet inter alia denying and
disputing each and all of the charges levelled against him. He prayed for
permission to inspect certain documents and to take copies thereof. Since the
said prayer was not accepted, another writ petition was filed on 13.9.1986
before the High Court. In the said writ petition order passed by the High E
Court was with to the effect that the enquiry should continue upon proper
inspection being granted to all documents for which inspection had been
offered, excepting three items. It was further directed that the enquiry should
commence after grant of j)roper opportunity to the respondent no. I in
accordance with law. It was, further directed that the enquiry should be F
completed as expeditiously as possible preferably within six months from the
date of commencement of the enquiry. Respondent No. I continued to make
grievance about denial of opportunity and on 10th September, 1986 purportedly
written statement of defence in reply to the charge sheet was filed. By order
dated 12th December, 1986, the respondent no. I was informed that his reply
was found unsatisfactorily and it was decided to hold an enquiry. Subsequently G
enquiry officer was appointed and a presenting officer was also appointed.
However, the enquiry officer appointed originally was replaced because of
respondent no.l's allegations of bias.

Another writ petition was filed by the respondent No. I for quashing the H
558 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A proceedings. The High Court directed the appellant to complete the enquiry
by 15th May, 1987. It was clearly indicated therein that if there is default in
completing the enquiry within the stipulated time, it would be presumed that
the Board was not interested to proceed with the matter so far as the
respondent no. I is concerned, and the order of suspension would stand
B quashed. On an application moved, the time for completion of the proceeding
was extended by two months. The enquiry officer concluded the proceeding
on I st June, 1987. He submitted the report on June 8, 1987, with the finding
that charges Nos. I, IV, VI, VII, VIII and IX were not established. However,
the charges Nos. 11, V and X were established while charge No. III was
partially established. Second show cause notice was accordingly issued
C proposing several punishments. A writ petition was filed challenging the
enquiry proceeding, enquiry report and the second show cause notice. The
only ground taking during the hearing of the writ petition was that the
respondent No. I who was the writ petitioner had not been given reasonable
opportunity of hearing and thus natural justice was denied to him. Further he
was not given access to several vital documents. It was contended that the
D findings recorded by the enquiry officer were perverse and no reasonable
person could have come to such finding on the basis of materials on record.
The second show cause notice betrays the complete non-application of mind.
In any event the punishment proposed was disproportionate with the offence
alleged to have been established in the enquiry.
E The stand of the present appellant opposing the writ petition was that
all relevant documents have been produced. Respondent No. I with the sole
object of delaying the proceedings had filed writ petitions at different points
of time. Materials on record clearly established misconduct. Therefore,
grievances of the writ petitioner cannot be entertained. The High Court after
F considering the rival stand and materials on record ultimately came to hold
as follows:

"To sum up: the enquiry proceedings were vitiated because the
petitioner was not given reasonable opportunity of being heard. The
petitioner was not given inspection of several vital documents which
G prejudiced his defence. The findings of the Enquiry Officer were
vitiated being perverse. The punishment proposed to be imposed
upon the petitioner was determined without considering the service
records of the petitioner which is contrary to the provisions of
Regulations 63."

H The writ petition was accordingly allowed and certain directions were
WEST BENGAL STA TE ELECTRICITY BOARD r. DILIP KUMAR RAY [PASAYA T.J.] 559

given inter alia directing that the respondent No. I was to be allowed to retire A
on 28th February, 1989 and all retrial benefits were to be paid to him within
three months of the retirement. The reasons for holding the enquiry
proceedings vitiated were indicated as follows:

"In that view of the matter no further proceedings shall be initiated
against the petitioner. The suspension order was issued on 30th July, B
1985 and the petitioner had to move this Court twice, firstly for a
direction upon the respondents to issue a charge sheet and secondly
for completion of the proceedings within a reasonable time. The charge-
sheet was only issued on January 17, 1986 and the enquiry proceeding
was concluded on June 1987. The report of the Enquiry Officer was C
submitted on June 6, 1987 and thereafter the impugned second show
cause notice was issued on June 19, 1987. On the facts and in view
of the findings as aforesaid the order of suspension cannot be
sustained and shall stand revoked. The petitioner shall be treated as
on duty for the entire period of suspension for all purposes. He shall
be paid all his arrear of salaries after adjustment of subsistence D
allowance already drawn within two weeks from the date of
communication of this order."

It is not in dispute that the directions given by the High Court in the
writ petition have been carried out. Subsequently the respondent No. I filed
a civil suit before the Assistant District Judge, Alipur, claiming damages for E
the institution of disciplinary proceedings against him by the appellant and
also the newspaper which purportedly made publication of certain news
items. The suit was registered as Money Suit No.3 of 1990 and was
subsequently re-numbered as Money Suit No.2of1995. The suit was filed on
12.5.1990. After referring to details of the departmental proceedings the F
following averments in the plaint were made:

"The plaintiff submitted that the defendant had with malafide intention
and to lower the Plaintiff's reputation and prestige in the estimation
of the public brought false charges against the Plaintiff illegally
suspended him from service. It has been clearly held by the Hon'ble G
High Court at Calcutta in C.O. No. 5644(w) of 1987 that it has not only
affected his reputation but also visited him with serious civil and
pecuniary consequences.

The plaintiff submits that he has suffered great mental shock on
H
560 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A account of such humiliation at the hands of the defendant Nos. 1-3
after having completed his long spell of a brilliant career in service.
The Plaintiff had to engage reputed barristers and advocate at different
stages of litigation for which the plaintiff had to spend a huge sum
of money with much difficulty. The plaintiff, therefore, claims
Rs.5,00,000/- only as compensation for defamation.
B
The defendant Nos. 6-9 have been made parties as they published
the defamatory news against the Plaintiff without even trying to
ascertain the truth from the plaintiff. The defendant Nos. 4-5 are made
parties as they are main instigators in suspending the plaintiff on
absolutely false charges."
c
The prayer was to the following effect:

"The plaintiff, therefore, prays for a decree jointly and severally against
the defendants for :

D A recovery of the sum of Rs.5,00,000/- as compensation of damages;

Costs of suit;

Some other relief or reliefs."

The trial court decreed the suit inter a/ia with the following findings
E

"The exhibit 12 is the certifies copy of the order dated 13 .6.1996
passed by the Hon'ble High Court at Calcutta in C.O. No. 7164(W) of
1986 issued by the Hon'ble Court on the application of the plaintiff.
In this order it is stated that the learned Government pleader Mr.
F Narayan Gupta for the Defendant Board submitted that there existed
no preliminary enquiry report on the subject covering the alleged
misconduct or breach of discipline. It is, therefore, clear that without
holding preliminary enquiry the plaintiff was suspended and the
charges were framed against him. In the judgment, exhibit 14, passed
G on 9.2.89 by the Hon'ble justice Shri Ajit Kumar Sengupta of the
Calcutta High Court in C.O. No. 5644(w) of 1987 issued by the Hon 'ble
Court on the writ application of the plaintiff held that the plaintiff .
should not have been suspended on the fact of the case. It is,
therefore highly probable that the probable that the plaintiff was
suspended for extraneous reasons".
H
WESTBENGALSTATEELECTRICITYBOARDv. DILIPKUMARRAY [PASAYAT,J.] 561

The plaintiff- respondent No. I was held entitled to damages ofRs.50,000 A
for harassment and another Rs.50,000/- for loss of his reputation. Interestingly
it was held as follows:

"There are no evidence to say actually who were the officers of the
defendant No. I Board abused the power vested in them to put the
plaintiff in trouble. Practically an individual cannot prove it. Only a B
high power Enquiry can reveal the truth, but this Court is not competent
to direct such enquiry. There is no evidence to prove that the
defendants Nos. 2 and 3 made to publish the fact of the plaintiffs
suspension in newspapers. For want of evidence the claim against the
defendant No. l West Bengal State Electricity Board and the same is C
dismissed without cost against the remaining defendants."

Appeal was filed by the appellant before the Calcutta High Court which
as noted above dismissed the appeal. Certain observations which are relevant
are to the following effect.

"The said judgment was no doubt relied upon by the learned Judge D
decreeing the suit. He held that it was highly probable that the
plaintiff was suspended for extraneous reasons.

Technically, it was said that the plaintiff was not entitled to damages
for defamation.
E
We are of the opinion that the newspapers being exonerated from the
charges of defamation along with the officers of the Board who were
alleged to have forwarded the information to them, does not mean that
the Board itself can be relieved from the charge of causing loss of
reputation of the Plaintiff. Which might take months or years, get back F
all his arrear pay and seniority. But is this a true recompense of all that
had happened to him in the meantime? If say, he has been under
suspension for four years as here, his children will tell their mates in
School or College their father is innocent but has been proceeded
against wrongfully; he will answer at all social gatherings shortly and
sympathetic questions about the stage of the disciplinary Enquiry. G
In our opinion, the suit was maintainable and properly decreed. There
can remain no doubt on the basis of the findings of fact that the
plaintiff had suffered a grievous wrong. The limitation in English
Courts on the basis of the law prevailing in England do not extend
H
562 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A and to the Indian Courts. Just as a criminal case puts the heavy
machinery of the Law against an accused, so does a disciplinary
proceeding but the heavy machinery of a State of other authority
against the person accused of Service offence. If the State employer
is unable to show that there was any reasonable cause or justification
for the proceedings if the findings are found at certain stages to have
B been even perverse then and in that event, the technical conclusion
is, that the employee has been made the victim of a proceeding, the
cause for which was not a genuine inquiry into the conduct of the
petitioner. What the other extraneous cause was if any, would be for
the employee to allege and the employer to show as non-existent. If
c no causes is shown, the court is compelled to conclude that the cause
was extraneous and not worth bringing out into the open public
scrutiny. The present trend of the law is to allow a remedy if a wrong
has been committed. On that principle also, the plaintiffs suit should
lie."

D The High Court upheld the award of Rs.50,000/- as damages for
harassment by treating the same as damages for malicious prosecution causing
harassment by way of mental pain etc. The award of Rs.50,000/- was for loss
of reputation was also upheld.

In support of the appeal, learned counsel for the appellant- Board
E submitted that the whole basis on which the compensations have been
awarded are really non-existent. The conclusions of the trial judge and the
High Court are contrary to the whole foundation of the judgment and decree
of the trial court. In the order passed by learned Single Judge in respect of
the departmental proceedings there was no observation about the proceedings
p being malajide or for extraneous reasons. Only on the ground that reasonable
opportunity was not granted to the employee-respondent No. I, the writ petition
filed by him was allowed. There was no specific averment regarding any
malicious prosecution. The only averment made in the plaint shows that wild
allegations were made without any material to substantiate them. Interestingly
the trial court did not frame an issue as to whether there was any malicious
G prosecution. No evidence was led even to show that there was any malicious
prosecution. It was rightly noted by the High Court that the trial court had
held that the plaintiff was not entitled to damages for defamation. Curiously
enough the High Court upheld the award of damages of Rs.50,000/- by
'coming to the conclusion that the amount appeared to have been awarded as
H damages for malicious prosecution causing harassment. The reasons are
WEST BENGAL STA TE ELECTRICITY BOARD v. DILIP KUMAR RAY [PASAYA T, J.] 563

unfathomable. A
In response, learned counsel for the respondent No. I supported the
judgment and decree of the trial court as affirmed by the High Court by the
impugned judgment. According to him an honest officer was being harassed
by unnecessary proceedings and the innocence of the respondent no. I was
established by the judgment of the High Court in the writ petition. B
Malice and Malicious Prosecution as stated in the Advance Law of
Lexicon, 3rd Edition by P. Ramanatha Aiyar read as follows:

"Malice - Unlawful intent
c
Will; intent to commit an unlawful act or cause harm, Express or actual
malice is ill will or spite towards the plaintiff or any indirect or improper
motive in the defendant's mind at the time of the publication which
is his sole or dominant motive for publishing the words complained
of. This must he distinguished from legal malice or malice in law which
means publication without lawful excuse and does not depend upon D
the defendant's state of mind.

The intent, without justification or excuse, to commit a wrongful act.
II. Reckless disregard of the law or ofa person's legal rights. Ill will:
wickedness ofhtart. This sense is most typical in non legal contexts".
E
"Malice means in law wrongful intention. It includes any intent which
the law deems wrongful, and which therefore serves as a ground of
liability. Any act done with such an intent is, in the language of the
law, malicious, and this legal usage has etymology in its favour. The
Latin malitia means badness, physical or moral - wickedness in
disposition or in conduct - not specifically or exclusively ill-will or F
malevolence; hence the malice of English law, including all fonns of
evil purpose, design, intent, or motive. But intent is of two kinds,
being either immediate or ulterior, the ulterior intent being commonly
distinguished as the motive. The term malice is applied in law to both
these forms of intent, and the result is a somewhat puzzling ambiguity G
which requires careful notice. When we say that an act is done
maliciously, we mean one of the two distinct things. We mean either
that it is done intentionally, or that it is done with some wrongful
motive."

H
564 SUPREME COURT REPORTS [2006] ~UPP. 9 S.C.R.

A "Malice in the legal sense imports (I) the absence of all elements of
justification, excuse or recognized mitigation, and (2) the presence of
either (a) an actual intent to cause the particular hann which is produced
or harm of the same general nature, or (b) the wanton and wilful doing
of an act with awareness of a plain and strong likelihood that such
harm may result.
B
The Model Penal Code does not use 'malice' because those who
formulated the Code had a blind prejudice against _the word. This is
very regrettable because it represents a useful concept despite some
unfortunate language employed at times in the effort to express it."

C "Malice" in the legal acceptance of the word is not confined to personal
spite against individuals but consists in a conscious violation of the law to
the prejudice of another. In its legal sense it means a wrongful act done
intentionally without just cause or excuse.

'Malice", in its legal sense, does not necessarily signily ill-will towards
D a particular individual, but denotes that condition of mind which is manifested
by the intentional doing of a wrongful act without just cause or excuse.
Therefore, the law implies malice where one deliberately injures another in an
unlawful manner.

E Malice means an indirect wrong motive.

'Malice' in its legal sense means, malice such as may be assumed from
the doing of a wrongful act intentionally but without just cause or excuse,
or for want of reasonable or probable cause."

F Malice, in ordinary common parlance, means ill-will against a person
and in legal sense, a wrongful act done intentionally, without just cause or
reason.

It is a question of motive, intention or state of mind and may be defined
as any corrupt or wrong motive or personal spite or ill will.
G
'Malice' in common law or acceptance means ill-will against a person,
but in legal sense it means a wrongful act alone intentionally without just
cause or excuse.

It signifies an intentio~al doing of a wrongful act without just cause or
H excuse or an action determined by an improper motive.
WESTBENGALSTATEELECTRJClTYBOARDv. DILIPKUMARRAY [PASAYAT,J.] 565

"MALICE'', in common acceptation, means, ill will against a person; but A
in its legal sense, it means, a wrongful act done intentionally without just
cause or excuse"

Malice in its common acceptation, is a term involving stint intent of the
mind and heart, including the will; and has been said to mean a bad mind;
ill-will against a person; a wicked or evil state of the mind towards another; B
an evil intent or wish or design to vex or annoy another; a wilful intent to
do a wrongful act; a wish to vex, annoy or injure another person or as intent
to do a wrongful act; a condition of the mind which shows a heart regardless
of social duty and fatally bent on mischief.

"MALICE" means wickedness of purpose, or a spiteful or malevolent C
design against another; a purpose to injure another; a design of doing
mischief, or any evil design or inclination to do a bad thing, or a reckless
disregard to the rights of others, or absence or legal excuse, or any other
motive than that of bringing a party to justice."
D
"The meaning of the term malice in English law, his been a question of
much difficulty and controversy; and those who made through the many
disquisitions on the subjects in text-books and judicial opinions are almost
tempted to the conclusion that the meaning varies almost infinitely, and that
the only sense which the term can safely be predicated not to have in ant
given legal context is that which it has in popular language, viz., spite or ill~ E
will. It certainly has different meanings with respect to responsibility for civil
wrongs and responsibility for crime; and even with respect to crime it has a
different sense according as it is used with reference to murder, libel, or the
capacity of an infant to commit crime, expressed by the rule malitia supplet
act item." (Ency. of the Laws of England). Ordinarily, the absence ofreasonable F
} and probable cause in instituting a proceeding which terminates in favour of
the plaintiff, would give rise to the inference of malice.

MALICE has been said to mean any wrong or indirect motive but a
prosecution is not malicious merely because it is inspired by anger. However,
wrong-headed a prosecutor may be, if he honestly thinks that the accused G
has been guilty of a criminal offence he cannot be initiator of a malicious
prosecution.

MALICE means the presence of some improper and wrongful motive -
that is to say an intend to use the legal process in question for some other
H
566 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A than its legally appointed and appropriate purpose. It means an improper or
indirect motive other than a desire to vindicate public justice or a private right.
It need not necessarily be a feeling of enmity, spite or ill-will; it may be due
to a desire to obtain a collateral advantage.

MALICE in fact is malue animus indicating that action against a party
B was actuated by spite or ill will against him or by indirect or improper motives.
Malice: hatred: aversion: antipathy: enmity:

Repugnance: ill-will: rancour: malevolence:

C Malignity: malignancy. Hatred is a very general term. Hatred applies
properly to persons. It seems not absolutely involuntary. It has its root in
passion, and may be checked or stimulated and indulged. A version is strong
dislike. Aversion is a habitual sentiment, and springs from the natural tasie
or temperament which repels its opposites, as an indolent man has an aversion
D to industry, or a humane one to cruelty.

Antipathy is used of causeless dislike, or at least one of which the
cause cannot be defined. It is found upon supposition or instinctive belief,
often utterly gratuitous. Enmity is the state of persona! opposition, whether
accompanied by strong personal dislike or not; as "a bitter enemy." Repugnance
E is characteristically employed of acts or courses of action, measures, pursuits,-
and the like. III-will is a settled bias of the disposition. It is very indefinite,
and may be of any degree or strength. Rancour is a deep seated and lasting
feeling of ill-will. It preys upon the very mind of the subject of it. While enmity
may be generous and open, rancour is malignant and private. Malice is that
enmity which can abide its opportunity of injuring its object, and pervert the
F truth or the right, or go out of its way, or shape course of action, to compass
its ends .. "Malevolence commences with some idea or evil belonging to and ..
connected with the object; and it settles into a permanent hatred of his person
and of everything relative to him" - (Gogan) Malignity is cruel malevolence,
or innate love of harm for the sake of doing it. It is malice the most energetic,
G inveterate, and sustained.

Malice in fact. "Malice in fact" means express malice.

MALICE IN FACT OR ACTUAL MALICE, relates to the actual state or
condition of the mind of the person who did the act. Malice in fact is where
H the malice is not established by legal presumption or proof of certain facts,

r
WEST BENGAL STATE ELECTRICITY BOARD v. DILIP KUMAR RAY [PASAYA T, J.] 567

but is to be found from the evidence in the case. A
Malice in fact implies a desire or intention to injure, while malice in law
is not necessarily inconsistent with an honest purpose.

Malice in law. 'Malice in law" means implied malice.
B
"MALICE IN LAW" simply means a depraved inclination on the part
of a person to disregard the rights of others, which intent is manifested by
his injurious acts.

Malice in its legal sense means malice such as may be assumed from
the doing of a wrongful act intentionally but without just cause or excuse, C
or for want of reasonable or probable cause. S.R. Venkataraman v. Union of
India AIR (l 979) SC 49, 51.

MALICIOUS. Done with malice or an evil design; wilful; indulging in
malice, harboring ill-will, or enmity malevolent, malignant in heart; committed
wantonly, wilfully, or without cause, or done not only wilfully and intentionally, D
but out of cruelty, hostility of revenge; done in wilful neglect of a known
obligation.

"MALICIOUS" means with a fixed hate, or done with evil intention or
motive; not the result of sudden passion.
E
Malicious abuse of civil proceedings. In general, a person may utilize
any form of legal process without any liability, save liability to pay the costs
of proceedings if unsuccessful. But an action lies for initiating civil proceedings.
Such as action, presentation of a bankruptcy or winding up petition, an
unfounded claim to property, not only unsuccessfully but maliciously and F
without reasonable and probable cause and resulting in damage to the plaintiff.
(Walker)

Malicious abuse of legal process. A malicious abuse of legal process
consists in the malicious misuse or misapplication of process to accomplish
a purpose not warranted or commanded by order of Court - the malicious G
perversion of a regularly issued process, whereby an improper result is
secured.

There is a distinction between a malicious use and a malicious abuse
of legal process. An abuse is where the party employs it for some unlawful
object - not the purpose which it is intended by the law to effect; in other H
568 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A words, a perversion of it.
Malicious abuse of process. Wilfully misapplying Court process to
obtain object not intended by law. The wilful misuse or misapplicati'on of
process to accomplish a purpose not warranted or commanded by the writ.
An action for malicious abuse of process lies in the following cases, A
B malicious petition or proceeding to adjudicate a person an insolvent, to
declare a person lunatic or to wind up a company, to make action against legal
practitioner under the Legal Practitioners Act, maliciously procuring arrest or
r'
attachment in execution of a decree or before judgment, order or injunction
or appointment ofreceiver, arrest of a ship, search of the plaintiffs premises,
C arrest of a person by police.

Malicious abuse of process of Court

Malicious act Bouvier defined a malicious act as "a wrongful act,
intentionally done, without cause or excuse."
D A malicious act is one committed in a state of mind which shows a heart
regardless of social duty and fatally bent on mischief a wrongful act
intentionally done, without legal justification or excuse.

'A malicious act is an act characterised by a pre-existing or an
E accompanying malicious state of mind.

Malicious Prosecution-Malice. Malice means an improper or indirect
motive other than a desire to vindicate public justice or a private right. It need
not necessarily be a feeling of enmity, spite or ill-will. It may be due to a desire
to obtain a collateral advantage. The principles to be borne in mind in the case
F of actions for malicious prosecutions are these:-Malice is not merely the
doing a wrongful act intentionally but it must be established that the defendant
was actuated by mains animus, that is to say, by spite of ill-will or any indirect
or improper motive. But if the defendant hod reasonable or probable cause
of launching the criminal prosecution no amount of malice will make him liable
for damages. Reasonable and probable cause must be such as would operate
G on the mind of a discreet and reasonable man; 'malice' and 'want of reasonable
and probable cause.' have reference to the state of the defendant's mind at
the date of the initiation of criminal proceedings and the onus rests on the
plaintiff to prove them.

OTHER DEFINITIONS OF "MALICIOUS PROSECUTION".
H
WESTBENGALSTATEELECTRICITYBOARD1·. DILIPKUMARRAY [PASAYAT,l] 569

"A judicial proceeding instituted by one person against another, from A
wrongful or improper motive and without probable cause to sustain it."

"A prosecution begun in malice, without probable cause to believe that
it can succeed and which finally ends in failure."

"A prosecution instituted wilfully and purposely, to gain some advantage B
to the prosecutor or thorough mere wantonness or carelessness, if it be at
the same time wrong and unlawful within the knowledge of the actor, and
without probable cause."

"A prosecution on some charge of crime which is wilful, wanton, or
reckless, or against the prosecutor's sense of duty and right, or for ends he C
knows or is bound to know are wrong and against the dictates of public
policy."

The term "malicious prosecution" imports a causeless as well as an ill-
intended prosecution.
D
'MALICIOUS PROSECUTION" is a prosecution on some charge of
crime which is wilful, wanton, or reckless, or against the prosecutor's sense
of duty and right, or for ends he knows or its bound to know are wrong and
against the dictates of public policy.

In malicious prosecution there are two essential elements, namely, that E
no probable cause existed for instituting the prosecution or suit complained
of, and that such prosecution or suit tenninated in some way favorably to the
defendant therein.

I. The institution of a criminal or civil proceeding for an improper p
purpose and without probable cause. 2. The cause of action resulting from
the institution of such a proceeding. Once a wrongful prosecution has ended
in the defendant's favor, lie or she may sue for tort damages - Also tenned
(in the context of civil proceedings) malicious use of process. (Black, 7th Edn.,
1999)
G
"The distinction between an action for malicious prosecution and an
action for abuse of process is that a malicious prosecution consists in
maliciously causing process to be issued, whereas an abuse of process is the
employment of legal process for some purpose other than that which it was
intended by the law to effect - the improper use of a regularly issued process.
H
570 SUPREME COURT REPORTS (2006) SUPP. 9 S.C.R.

A For instance, the initiation of vexatious civil proceedings known to be
groundless is not abuse of process, but is governed by substantially the
same rules as the malicious prosecution of criminal proceedings." 52 Am. Jur.
2d Malicious Prosecution S. 2, at 187 (1970).

The term 'malice,' as used in the expression "malicious prosecution" is
B not to be considered in the sense of spite or hatred against an individual, but
of malus animus, and. as denoting that the party is actuated by improper and
indirect motives.

As a general rule of law, any person is entitled though not always
C bound to lay before a judicial officer inforrrration as to any criminal offence
which he has reasonable and probable cause to believe has been committed,
with a view to ensuring the arrest, trial, and punishment of the offender. This
principle is thus stated in Lightbody's case, 1882, 9 Rettie, 934. "When it
comes to the knowledge of anybody that a crime has been committed a duty
is laid on that person as a citizen of the country to state to the authorities
D what he knows respecting the commission of the crime, and if he states, only
what he knows and honestly believes he cannot be subjected to an action
of damages merely because it turns out that the person as to whom he has
given the information is after all not guilty of the crime. In such cases to
establish liability the pursuer must show that the informant acted from malice,
i.e., 'not in discharge of his public duty but from an illegitimate motive, and
E must also prove that the statements were made or the information given
without any reasonable grounds of belief, or other information given without
probable cause; and Lord SHAND added (p. 940): "He has not only a duty
but a right when the cause affects his own property."

F Most criminal prosecutions are conducted by private citizens in the
name of the Crown. This exercise of civic rights constitutes what with reference
to the la of libel is termed a privileged occasion: but if the right is abused,
the person injured thereby is, in certain events, entitled to a remedy. (See H.
Stephen, Malicious Prosecution, 1888; Builen and Leake, Pree. Pl., Clerk and
Lindsell. Torts, Pollock, Torts; LQR. April 1898; Vin., Abr., tit. "Action on the
G Case" Ency. of the Laws of England.)

"MALICIOUS PROSECUTION" means that the proceedings which are
complained of were initiated from a malicious spirit, i.e, from an indirect and
improper motive, and not in furtherance of justice. [I 0 CWN 253 (FB)]

H
.... WESTBENGALSTATEELECTRICITYBOARDv. DILIPKUMARRAY [PASAYAT,J.] 571

The performance of a duty imposed by law, such as the institution of A
a prosecution as a necessary condition precedent to a civil action, does not
constitute "malice". (Abbott v. Refuge Assurance Co., (1962) I QB 432).

"Malicious prosecution" thus differs from wrongful arrest and detention,
in that the onus of proving that the prosecutor did not act honestly or
reasonably, lies on the person prosecuted." (per DIPLOCK U in Dailison v. B
Caffery, (1965) I QB 348)). (Stroud, 6th Edn., 2000).

'Malice' means and implies spite or ill-will. Incidentally, be it noted that
the expression "ma/a fide" is not meaningless jargon and it has its proper
connotation. Malice or ma/a fides can only be appreciated from the records C
of the case in the facts of each case. There cannot possibly be any set
guidelines in regard to the proof of malafides. Malafides, where it is alleged,
depends upon its own facts and circumstances. (See Prabodh Sagar v.
Punjab State Electricity Board and ors. (2000] 5 SCC 630.

The legal meaning of 'malice' is "ill will or spite towards a party and D
any indirect or improper motive in taking an action". This is sometimes
described as "malice in fact". "Legal malice" or "malice in law" means
"something done without lawful excuse". In other words, "it is an act done
wrongfully and wilfully without reasonable or probable cause, and not
necessarily an act done from ill feeling and spite. It is deliberate act in
disregard of the rights of others". (See State of A.P. v. Govardhanlal Pitti E
(200314 sec 739).

The word "malice" in common acceptation means and implies "spite" or
"ill will". One redeeming feature in the matter of attributing bias or malice is
now well settled that mere general statements will not be sufficient for the
purposes of indication of ill will. There must be cogent evidence available on F
record. In the case of Jones Bros. (Hunstanton) Ltd v. Stevens (1955) I QB
275: (1954) 3 All ER 677 (CA), the Court of Appeal has reliance on the decision
of Lumley v. Gye (1853) 2 E&B 216: 22 L.JQB 463 as below: "For this purpose
maliciously means no more than knowingly. This was distinctly laid down in
Lumley v. Gye (1853) 2 E&B 216: 22 LJQB 463 where Crompton, J. said that G
it was clear law that a person who wrongfully and maliciously, or, which is
the same thing, with notice, interrupts the relation of master and servant by
harbouring and keeping the servant after he has quitted his master during his
period of service, commits a wrongful act for which he is responsible in law.
Malice in law means the doing of a wrongful act intentionally without just
H
572 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A cause or excuse: Bromage v. Prosser (1825) I C&P 673: 4 B&C 247.
'Intentionally' refers to the doing of the act; it doe not mean that the defendant
meant be spiteful, though sometimes, as for instance to rebut a plea of
privilage in defamation, malice in fact has to be proved". (See State of Punjab
v. UK. Khann and Ors., (2001] 2 SCC 330).

B Malice in law. "Malice in law" is however, quite different. Viscount
Haldane described it in Shearer Shields, (1914) AC 808 as: "A person who
inflicts an injury upon another person in contravention of the law is not
allowed to say that he did so with the innocent mind: he is taken to know
the law, and he must act within the law. He may, therefore, be guilty of malice
C in law, although, so far the state of mind is concerned, he acts ignorantly, and
in that sense innocently". Malice in its legal sense means malice such as may
be assumed from the doing of a wrongful act intentionally but without just
cause or excuse, for want of reasonable or probable cause. (See S.R.
Venkatarcunan v. Union of India (1979] 2 SCC 491)

D Malice-per common law. "Malice" in common law or acceptance means
ill will against a person, but in legal sense means a wrongful act done ,;
intentionally without just cause or excuse. (See Chairman and M.D., B.P.l.
ltd v. S. P. Gururaja and ors JT (2003) (Suppl. 2) SC 515 and Chairman and
MD, BPL ltd. v. S.F. Gururaja and Ors., (2003] 8 SCC 567).

E While it.is true that legitimate indignation does not fall within the ambit
of malicious act, in almost all legal inquiries, intention, as distinguished from
motive is the all important factor. In common parlance, a malicious act has
been equated with intentional act without just cause or excuse. (See Jones
Bros. (Hunstanton) v. Ste.vans (1955) 1 QB 275: (1954] 3 All ER 677 (CA)).
F Kumaon Manda! Vikas Nigam ltd. v. Girja Shankar Pant and Ors., (2001]
1sec182).

A bare perusal of the averments made in the plaint show that they are
extremely vague, lacking in details and after the learned trial judge held that
the Board alone was responsible because it was not established that any
G individual officer was responsible for it and dispute only have been revealed
by the high-power enquiry which the court was incompetent to direct, the
award for damages is clearly indefensible. The High Court's judgment suffers
from various infirmities. Firstly, it has taken a confused view of the matter. It
failed to notice that the trial court itself had held "it was highly probable" that ·
the plaintiff was suspended for extraneous reasons. This conclusion is based
H on surmises and conjectures. This had not been established. As noted above,
.. WESTBENGALSTATEELECTRICITYBOARDv. DILIPKUMARRAY [PASAYAT,J.] 573

the High Court noted that the Trial Court itself held that the plaintiff was not A
entitled to damages for defamation. But while affirming the judgment and
decree, it held that the damages granted for harassment must be read as
damages for malicious prosecution causing harassment. To say the least, all
the conclusions are confusing, contradictory and do not convey any sense.
Looked at from any angle the impugned judgment of the High Court is B
indefensible and is set aside.

The appeal is allowed but without any order as to costs.

v.s.s. Appeal allowed.