Before proceeding to discuss the incidence of "malice", "want of good faith" and "victimization" in conducting departmental inquiries, it is necessary to understand the content and legal meaning of these specific terms. When a public authority renounces in its approach and in its perception the cardinal attribute of objectivity and fairplay, it descends progressively towards exercising power and authority arbitrarily and capriciously bringing the personal elements (subjectivity) i.e. personal likes and dislikes of the individual acting as the public authority into display in its administrative decisions and actions. Graded and expressed in ascending order the erosion of objectivity, the setting in of negative values in attitude and the degeneration of public responsibility, which end in vindictive action or conscious inflicting of injury(punishment) on subordinates,(the unfortunate victims), are as under:--

• Good faith, which is equal to bonafides -[the start]

• Lack of bonafides - [first stage degeneration]

• Bad faith [Second stage - further decline]

• Malice [third stage - onset of negative/inimical approach]

• Malafide [final stage -Poses a threat to the subordinates]

• Victimization [the threat ends in injury/punishment]

Good faith or Bonafides:
A thing shall be deemed to be done in good faith where it is done honestly whether negligently or not"[Section 3(22) of the General Clauses Act

"Nothing is said to be done in good faith which is done or believed without due care and attention" [Section 52 Indian Penal Code]
Both the definitions retain the essence of good faith which is that a thing should be done honestly. But the Indian Penal Code emphasises on "due care" or "absence of negligence", while absence of negligence is not considered essential under the General Clauses Act.

Bad Faith:
The term "bad faith" is a shade milder than malice and implies breach of faith or willful failure to respond to one's known obligation or duty. Bad judgement or negligence is not bad faith, which imparts a dishonest purpose or some moral obliquity and implies conscious doing of wrong. It is much more than a mistake of judgement and is synonymous with dishonesty. [Bhupender Singh v.State of Haryana AIR 1968 Punj and Har 406]

Malice:
Malice according to Pollock on Torts (page 237)" is a wish to injure the party rather than to vindicate the law. It is indicative of an evil mind, which is disdainful of duties social or legal, and disregards the duties to others. In common parlance "Malice" means "ill-will" against a person, but in legal acceptation it means a wrongful act caused intentionally without just cause or excuse. It is doing a wrongful act to another without lawful excuse or justification willfully or purposely. Malicious act is not one which is done accidentally, thoughtlessly or negligently but designedly, willfully or wantonly.[Bhupender Singh v. State of Haryana AIR 1968 PUNJ and Har 406]

Malice has been construed as meaning an improper or indirect motive., i.e. some motive other than a desire to vindicate public justice or private right. It need not necessarily be a feeling of enmity, spite or ill-will [Nanjappa v.Ganpathi Gounda, 21 Mad LJ 1052]

Malafide:
Malafide is a state of mind which prompts a conscious violation of the law to the prejudice of another with an intent to do harm out of revenge or enmity. [Monohar Lal Gupta V.State pf Punjab 1968 SLR 151 (P&H HC)]

Mala fide does not necessarily involve a malicious intention. It is enough if aggrieved party establishes the authority making the impugned order does not apply its mind to the matter in question or that the impugned order is made for a purpose or upon a ground other than what is mentioned on the face of the order [Gauri Pr.Ghosh v.State of West Bengal, 1968 Lab IC 735 B (Cal)]

In legal parlance the word "bonafide" is used, it does only mean absence of malice. However "not bonafide" should not be construed as indicative of presence of positive elements of malice.

Malafide on the other hand will mean existence of malice in the mind of a person. Thus an action which is not bonafide need not be with malicious intent, because even if an action has been taken without due care or for extraneous reasons or as a result of caprice, it is sufficient to show lack of bonafides

Thus the two concepts are entirely different and are used for different purposes., - A malafide action is more serious inasmuch it shows the existence of malice and once it is proved that a action is malafide, the act entirely falls through. Malicious exercise of power will make an act entirely null and void. On the other hand, if an action is not, bonafide it merely shows that either it has not been done with due care or attention or extraneous reasons have been taken into consideration. In such cases the action does not amount to nullity.

A thing is not bonafide in the absence of honesty of purpose. Honesty of purpose is the essence of the expression good faith. When an order is made for a purpose or upon the grounds other than what is mentioned in the face of the order, then the order suffers from lack of good faith. Malafide on the other hand has been construed as an improper or indirect motive, i.e. some motives other than a desire to vindicate public justice or private right.

A public body is incorporated for a "public purpose'. It has to echo the policies of the Government and respect the fundamental rights of the citizens. No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would be held inoperative.

The ordinary meaning of the word 'victimization' is that a certain person has become a victim, or scapegoat. which means he has been unjustly dealt with. Arbitrary conduct or unnecessary harshness by the normal standard of reasonable man may be a cogent evidence of victimization. However mere harshness of conduct or punishment will not give rise to an inference of victimization unless the act is so harmful or arbitrary that ulterior reasons can be presumed. Whatever injury or illegality affects an employee or when an action prejudicial to the employee is taken on some pretext other than a real reason, then it amounts to victimization.

Earlier the discussion on the different concepts centered preponderantly on the strength of the underlying motive or intention of an action. When we come to discuss about victimization, we shift to the action itself i.e. perpetuation of harmful physical action. Two of the essential ingredients of victimization are

• Some harm must be caused to a person and

• That harm was unmerited and was caused by extraneous considerations

The words have more or less the same connotation. The same transaction can be characterised as 'malafide' or by way of 'victimization'. In every such action there is a person supposed to do wrong and another person who is subjected to undeserved suffering. When we used the word 'malafide' we emphasize the motive or intention of this person doing the wrong. The point whether any harm has been or has not been produced to the other party concerned recedes to the background. But when we characterise the same action by way of victimization, we look at the transaction from the stand point of the person actually wronged. The attention on such cases is focussed on the punishment and not on the wrong-doer or his motive.

There is wider scope for malicious acts and acts of victimisation in the domain of administrative decisions, where the officer does not have the safeguards and remedies of internal appeal and review or eligibility for seeking legal remedies. One limiting factor is the statutory service regulations for officers of nationalised banks with defined service terms and conditions. Article 16 of the Constitution confers the right of equality and the Nationalised banks are obliged to respect fundamental rights of the officer employees. There are however certain residual areas like, transfer to inconvenient places, denial of promotion when eligible, denial of recognition for good performance when due etc. which many officers suffer silently without a remedy or outlet to ventilate for them.

But more severe punishments can be inflicted only through exercise powers for disciplinary action. There are a wide variety of ways that this power can be misused. That a charge sheet was issued and after several years it all fizzled out or failed to explode and ended with a mere "censure" is not a consolation, since the process of charge sheeting an employee and holding the same indefinitely for several years, dampens his spirit and puts him to extreme uneasiness and discomfort. It may also delay or defeat his promotion in the interim period.

1. When the employee is unjustly dealt with or given punishment disproportionate to the offence then this shows victimization.

2. When an innocent person is punished for ulterior reasons, then this shows victimization. In other words victimization will mean punishment of an innocent employee because of displeasure incurred otherwise than in the course of employment. Arbitrary conduct or unjustified harshness by the normal standard of reasonable man may be cogent evidence of victimization or unfair labour practice.[B & C Mills v. Workmen (1951)II LLJ 314 (LAT).

3. Sometimes an innocent, but weak subordinate is made the scapegoat for the failure or omissions of his superior officer, so that the latter may be set scot-free. This is rank victimization.

4. When a transaction is put through by a team or group of officers and it fails, selecting only one among them to face charge sheet, leaving he others scot-free results in discrimination and also victimization.

5. Whatever injures or illegally affects the employee or when an action prejudicial is taken on some pretext other than the real reason, then it amounts to victimization.[Turner Morrison & Co. v.Workmen (1950)II LLJ 122(IT)]

6. Victimization, as commonly understood, means that dismissal is a mere camouflage to get rid of employees on invented charges. It can either be that the charges are false and the enquiry is mere empty formality and the motive of the management is malafide or the punishment is unconscionable and grossly disproportionate.[Korba Colleries v.Workmen - Gazette of India dated dt.29.4.67, p.1566(IT)]

7. Raking of past settled cases indicates victimization. The saying is that "the hatchet once buried should not be dug out again". In these cases no action is taken against the employee for the irregularity or discrepancy in the performance of his duty, when it had occurred. At that time the irregularity was viewed as trifling or insignificant and passed on. After sometime some incident happens on account of which the personal equations between the employer and the employee becomes strained and in such cases there is an obvious tendency to rake up old issues and this would show lack of good faith. When the charges related to a period long anterior to the period when explanation was called for this may give rise to a presumption of malafides


[Prtatap Singh v. State of Punjab, (1966) I LLJ 458: ASIR1964 SC 72]>

8. Circumventing established norms or rules of inquiry and deviating on essential or core formalities may imply a desire towards victimization. Charge Sheet served without conducting a bonafide investigation, and serving charge sheets without preparing supporting evidences by way of lists of documents/witness is indicative of malicious intention.

9. Appointing an ineligible officer as Inquiry Officer (e.g. one having definite interest in the subject matter of the inquiry) implies unfair inquiry practice, which in turn shows a desire for victimization

10. All acts of harassment (which means to irritate or torment persistently, though finally the tormentor may not be denying what is due to the employee) are malicious in intent and therefore deemed victimization. This is called "driving the employee from pillar to post" and then yielding his request partly or totally.[e.g.] An employee's annual increment has become due, but it is deferred raising unjustified queries persistently and released after a delay of six months.

11. Indefinite holding of a disciplinary case at different stages without deciding is malicious in intent. After years the case may be closed with a mere "censure", or even the employee may be exonerated, but intentionally delayed justice is partly denial of justice and hence malicious. Employee is tormented for a long time by holding him in suspense.

12. When the policy guidelines of the bank distinguish certain losses caused by inherent risk normal at times in the business of banking, but charge sheeting some employees for such "losses" is an act of victimization, because this is against the declared policy.

13. willful Denial of Natural justice to the charged officer in a departmental inquiry is malicious and borders on victimization

14. Issuing repeated charge sheets to an employee on flimsy allegations of assumed procedural lapses to award him a spate of minor penalties is malicious and hence amount to victimisation

15. Promoting an employee to a higher rank on consideration of his past record of service, and thereafter when the relations subsequently turn sour, serving him charge sheet on assumed lapses of the earlier tenure before promotion, despite no new issue or omission on his part cropping up, is indicative of victimization.

Internal remedies will be seldom available and the employee per force has to approach either the high court or the civil court. In such a situation the burden of showing malafide and victimization is on the employee. This is on the basis of the accepted rule that a person has to prove the affirmative and it is not for the other person to prove the negative. The decision of the management even if justified on merits might be impugned on the ground of malafide and it is necessary for the employee to adduce evidence for that purpose.

1. For deciding malafide the only relevant consideration is whether the order was made for ulterior purpose or a purpose other than that mentioned in the punishment orders. It may be easier to prove that the stated purpose is a sham. But proving the ulterior purpose needs more resources by way of supporting evidence.

2. The prayer to the court must be to set side the order based on malice and victimization and other reliefs relevant thereto.

3. Objections regarding malafide and victimization should be taken at the earliest stage. Where there was no suggestion by the affected employee that he was being harassed out of malicious intent all through and the statement was made for the first time as a plea in the law court, it will be presumed to be an after-thought and may not be taken notice of.

4. Allegation cannot be attributed against one Authority and malafide attributes to other authorities. An Inquiry is a process involving a number of persons from the management. Further when an individual is named for malicious acting, he has to be made a party to the suit or writ. In that case he may also file an affidavit denying such allegations and giving his own version of the event.

5. It is also possible for the aggrieved employee to allege malafide to a corporation, company or the State without naming a particular officer who might have taken the action. This is because a corporate body or a Government department is a homogeneously functioning unit, and once a decision is made at a particular point, it is accepted by all above and below in the hierarchy as a policy decision and they all subscribe to the same.

The moral is that the allegation of malafide is easy to make, but more difficult to prove. The employee needs to undertake good homework and gather substantive or material evidence indicative of the presence of malicious intent. The employee, all through to remain cool at each provocation, but only make a mention of the act, by way of objection and bring events to record.

The evidence adduced in a judicial proceedings should clearly bring about arbitrary acting on the part of the management. More than that it should prove ulterior motives. When the employee feels that he has a bonafide case and could prove the existence of calculated action by the management, he must submit the plea of malicious acting as an attendant issue, while pleading his case for justified reliefs. The plea of malice should not be the exclusive statement or the main highlighted issue made in the presentation to the court, It should be a part of the over-all case, where sufficient grounds must be adduced to establish that the employee was inflicted harsh injustice on no identifiable reasons.

The allegations of malafide and of improper motives on the part of the officers in power have increased in recent times. Some cases are brought before courts without any factual basis and merely with a view to cause prejudice or with the hope that some of it might stick. Courts are therefore reluctant to take seriously such allegations. It is therefore necessary that allegations of malafide are leveled with convincing particulars and attendant details, for which the employee must start his home-work of responding to against malice and victimization methodically from the earliest stage.