Orissa High Court
Malaya Ranjan Dash vs State Of Odisha And on 2 May, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
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IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.28874 of 2023
An application under Articles 226 and 227 of the Constitution of
India.
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Malaya Ranjan Dash ......... Petitioner
-Versus-
State of Odisha and
others ......... Opp. Parties
For Petitioner: - Mr. Budhadev Routray
Senior Advocate
For Opp. Parties: - Mr. Pitambar Acharya
Advocate General
Mr. Aurobinda Mohanty
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE S.S. MISHRA
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Date of Hearing: 04.04.2025 Date of Judgment: 02.05.2025
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S. K. SAHOO, J. The foundation of justice is good faith. The good faith
of the Judges is the firm bed-rock on which the system of
administration securely rests. Richard Eyre said, "The principle of
acting in good faith is at the heart of decent work."
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 02-May-2025 12:20:15
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In the case in hand, the crux of the matter lies in
whether the alleged act/omission on the part of the petitioner
can be said to be a „misconduct‟ or an act done on „good faith‟
which could at best be termed as an inadvertent mistake or error
of judgment.
The petitioner Malaya Ranjan Dash, who is an officer
in the rank of Odisha Superior Judicial Service has filed this writ
petition with a prayer for a direction to quash the impugned
notification no.2100 dated 21st December 2022 under Annexure-
22 in which he has been awarded with the major penalty of
reduction to a lower grade i.e. Selection Grade (SG) in the same
rank of District Judge as envisaged in Sub-rule (vi) of Rule 13 of
the Odisha Civil Services (Classification, Control and Appeal)
Rules, 1962 (hereafter „1962 Rules‟) and fixation of his pay at
the initial scale of Selection Grade with entitlement to annual
increments in the Selection Grade and that his upgradation to
the next higher grade in the Supertime Scale to be considered
after five years. He has also challenged the consequential office
order no.6950 dated 16th February, 2023 of the Govt. of Odisha,
Home Department under Annexure-23, with a further prayer to
exonerate him of all the charges and extend all service benefits
attached to the post of a District Judge (Super Time Scale) w.e.f.
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21st December, 2022 treating the entire disciplinary proceeding
including the enquiry undertaken by the Inquiring Authority to be
illegal and in violation of principle of natural justice and/or to
pass any other order/orders, direction/directions as this Court
deems fit and proper for the ends of justice.
2. The factual matrix of the case is as follows:-
(i) The petitioner got selected in the written test for
the post of District Judge directly from the Bar in the year 2010
and attended the interview on 4th September 2010 and came out
successful and declared topper amongst four candidates and
selected for the post of District Judge through direct recruitment
from the Bar in that year. During his entire service career, the
petitioner had remained sincere, committed to his work and had
performed his job to the utmost satisfaction of higher authorities
and till initiation of disciplinary proceeding, he had never
received any adverse comment/remark from the High Court.
(ii) It is the further case of the petitioner that after
successful completion of five years in the cadre of District Judge,
the petitioner was granted Selection Grade Scale of pay with
effect from 15th December, 2015 and on satisfactory
performance in the said cadre, he was further granted Super
Time Scale of pay with effect from 3rd August, 2017 by this
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Court. During the tenure of the petitioner as Addl. District &
Sessions Judge in four different districts and as Principal District
& Sessions Judge in four districts of Odisha consecutively for
around seven years, the petitioner was appreciated by the
Administrative Judges of those stations/districts and he truly
believed that he must have received CCR grading of high rank
from them. Even during his stint in Orissa High Court as
Registrar General, the performance of the petitioner was
appreciated by the then Hon‟ble Chief Justice and other puisne
Judges of this Court.
(iii) It is the further case of the petitioner that while
he was working as such, on 26th February, 2021, a copy of the
order dated 24th February, 2021 of one Division Bench of this
Court was received by the Registrar (Judicial) I/C of the Court,
namely, Dr. Pabitra Mohan Samal and he endorsed on it and sent
to the Deputy Registrar (Judicial), namely, Sri Janmejay Das, an
officer assigned with the job of filing and listing of the cases. On
very same day, the then Deputy Registrar (Judicial) of the Court
placed a note sheet before the petitioner and urged to approve
the same in order to comply the said order of the Division Bench
of the Court dated 24th February 2021 as it was directed in the
said order that the brief along with the copy of the order was to
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be supplied to the learned Senior Advocates engaged as
Amicus Curiae by 26th February 2021, i.e. on that day itself and
unless a case was registered, the same could not be done. On
good faith, with an honest intention to comply the judicial order
of the Court as well as believing the officers of the Registry, Suo
Motu Writ Petition (Civil) No.7943 of 2021 was registered.
(iv) It is the further case of the petitioner that the
then Hon‟ble Chief Justice took exception of the matter as to why
the matter was registered without bringing the same to his
notice and as a consequence, the petitioner was immediately
removed from Registry and ultimately he was transferred to the
District of Rayagada.
(v) It is the further case of the petitioner that a
preliminary show cause notice was served on him calling upon
him to show cause regarding registration of Suo Motu Writ
Petition (Civil) No.7943 of 2021 and to explain as to why and
under what circumstances, the said Suo Motu Writ Petition came
to be registered. On being supplied with the copy of the
dissenting order of the said Division Bench along with the show
cause notice, for the first time, the petitioner came to know that
the 2nd Judge of the Division Bench of the Court recorded his
dissenting view and the matter was directed to be put up before
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the third Judge after getting permission from Hon‟ble the Chief
Justice.
(vi) It is the further case of the petitioner that
without disputing the fact of approval of the note sheet leading
to the registration of the above mentioned Suo Motu Writ
Petition, the petitioner submitted his explanation as to under
what circumstances, the same was approved and stated that it
was an inadvertent mistake on his part as he was neither vetted
by the then Deputy Registrar (Judicial) nor could focus that he
was acting upon a copy of the order without the signature of
Hon‟ble Judges and the petitioner could not know that there was
dissenting opinion of one of the Hon‟ble Judges of the Bench, as
the note sheet was placed before him after two days of the date
of the order unaccompanied with that part of dissenting order. It
is further stated that on his query from the concerned Presiding
Judge of the Division Bench regarding the manner of compliance
of the order over phone, it was not even disclosed that the order
was unsigned rather the Presiding Judge asked to comply the
order and on good faith to give effect the judicial order of the
Court with promptitude, the petitioner approved the same.
(vii) It is the further case of the petitioner that on
2nd August, 2022, he was transferred from the post of District &
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Sessions Judge, Rayagada to the Government of Odisha,
Department of Labour & E.S.I as Presiding Officer, Industrial
Tribunal Rourkela on deputation, where the Petitioner joined on
11th August, 2021. For the reasons best known to the opp.
parties, the petitioner was debarred from getting the disturbance
allowance during such transfer stated to have been done on
administrative ground, without even disclosing such ground to
the petitioner on which the disturbance allowance was
disallowed. According to the petitioner, the disturbance
allowance paid to the Judicial Officer on his transfer to a different
place could only be debarred on valid grounds, but without
intimating the petitioner as to what made the Authority to debar
him from such right, the authority disallowed the same, which
deemed to be a punishment imposed on him without any
proceedings.
(viii) It is the further case of the petitioner that the
petitioner received the memorandum of charges from the opp.
parties vis-a-vis initiation of departmental proceeding vide memo
No.03 of 2021 dated 9th November, 2021 on the ground of (a)
gross misconduct (b) dereliction in duty (c) administrative
indiscipline while dealing with judicial records and (d) failure to
maintain absolute integrity and honesty, under Rule 3 of the
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Odisha Government Servants‟ Conduct Rules, 1959 (hereafter
„1959 Rules‟). Although the charge memo was containing the
memo of evidence proposed to be proved against the delinquent
officer, but no such document was supplied with the charge
memo as required under sub-rule (3) of Rule 15 of the 1962
Rules though there was a direction to inspect the documents
during the working hour of the Court.
(ix) It is the further case of the petitioner that in
obedience to the aforesaid direction, the petitioner submitted his
written note of defence on 9th December, 2021 taking almost
identical stand as was taken by him in his preliminary show
cause reply and prayed not to treat the alleged act/omission as a
misconduct as the action done on good faith by oversight could
at best be termed as an inadvertent mistake or error of
judgment for the another reason that there was nothing to gain
by him in doing so, at the risk of his career and accordingly, the
petitioner prayed to exonerate him from all the charges. It is
further stated that since he merely intended to comply the
judicial order of the Court and same in any circumstances,
cannot be termed as a misconduct but at best an inadvertent
mistake or error of judgment for which he may be excused.
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(x) It is the further case of the petitioner that the
petitioner was neither intimated that his written note of defence
was found to be not satisfactory nor that an inquiry committee
was constituted to conduct inquiry on the charges leveled against
him whereas suddenly on 22nd April, 2022, he received a notice
from the Inquiring Authority (the Judge was one of the members
in the same Suo Motu Writ Petition (Civil) bearing W.P.(C)
No.7943 of 2021, for registration of which the disciplinary
proceeding against the petitioner was initiated) to appear on 7th
May 2022 in D.P. No.3 of 2021.
(xi) It is the further case of the petitioner that in
obedience to the aforesaid direction, the petitioner appeared
before the Inquiring Authority on the first date of inquiry i.e. on
7th May, 2022. On that day, petitioner came to know for the first
time that besides him, two other officers, namely, Dr. Pabitra
Mohan Samal, the then Registrar (Judicial) I/C who had first
received the copy of the order of said Division Bench and Sri
Janmejaya Das, the then Deputy Registrar (Judicial), who had
put up the note sheet before the petitioner for registration of Suo
Motu Case, were facing the same inquiry with him in respect of
the same incident.
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(xii) According to the petitioner, though a joint
enquiry is contemplated in Rule 17 of the 1962 Rules, where two
or more Government servants are concerned in any case and for
that an order is required to be passed by the competent
Authority, but to the utter dismay, in contravention of such
provision, the inquiry was conducted under Rule 15 of the 1962
Rules that too without making the petitioner aware of the fact
that other two officers were facing the same proceeding and
even without supplying the copy of the defence submitted by
those officers in reply to the charges leveled against them
thereby making the entire process of enquiry opaque and in
gross violation of principle of natural justice and thus, the
proceeding is liable to be vitiated.
(xiii) It is the further case of the petitioner that on
the first date of inquiry, the petitioner filed a petition to direct
the Marshalling Officer to supply the photocopies of the
documents as per the schedule of the said petition. At the same
time, Inquiring Authority directed the Marshalling officer to
supply copy of the petition already filed by the department on 5th
April, 2022 before the Inquiring Authority to take around
fourteen documents on record for the purpose of the
departmental proceeding. The Inquiring Authority directed the
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Marshalling officer to supply copies of those documents as
mentioned in the petition dated 5th April, 2022 except the copy
of the order of the Hon'ble the then Chief Justice dated 4th April,
2021 directing the Registrar General to call upon the delinquent
officers to show cause (six pages in three sheets), which they
allowed mere inspection by the delinquent officers and also to
submit reply on the petition filed by the petitioner on 7th May
2022 although such document was the basis of initiating
proceedings against the petitioner and other officers and finds
place in the Memo of Evidence under Annexure-III of the
Memorandum of Charges, and in view of the mandate of sub-rule
(3) of Rule 15 of the 1962 Rules required to be served on the
petitioner along with the memorandum of charges in order to
defend him properly and having not done so and merely allowing
the document consisting of six pages, for only inspection cannot
held to be sufficient compliance of the above provision and thus,
the proceeding is vitiated for violation of principle of natural
justice.
(xiv) It is the further case of the petitioner that on
the next date of the inquiry proceeding i.e. on 28th May, 2022,
the Marshalling Officer supplied copies of all the documents to
the delinquent officers as per the petition dated 5th April, 2022
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except the copy of the order of the Hon'ble the then Chief Justice
dated 4th April, 2021 directing the Registrar General to call upon
the delinquent officers to show cause (six pages in three sheets),
which they allowed inspection by the delinquent officers. The
Marshalling Officer filed the reply to the petition of the petitioner
dated 7th May, 2022 for supply of documents. As some confusion
arose about the documents to be supplied by the department to
the delinquent officers as per the direction of the Inquiring
Authority and the documents sought for in the petition dated 7th
May, 2022 filed by the petitioner, the petitioner was allowed to
file a fresh petition for supply of documents.
(xv) It is the further case of the petitioner that the
petitioner filed a fresh petition to supply the remaining
documents which he sought for and which was quintessential for
preparation of his statement of defence. It is further submitted
that on the very day, even without getting any written response
from the Marshalling Officer, the Inquiring Authority outrightly
rejected the said petition mostly holding that the documents
were not relevant for the purpose of the disciplinary proceeding.
To the utter dismay and surprise, the Inquiring Authority failed
to appreciate that after the order dated 24th February, 2021 in
Suo Motu Writ Petition (Civil) bearing No.7943 of 2021 was
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passed, there was an order dated 9th September, 2021 wherein,
the said writ petition was disposed of by a three-Judge Bench
consisting of Hon'ble the Chief Justice, Hon'ble Judge, who was
member of the Division Bench passed order on 24th February,
2021 and the Enquiring Authority as its members.
(xvi) It is the further case of the petitioner that after
the evidence of the Department Witness No.1 was closed on 30th
July, 2022, the petitioner filed a petition before the Inquiring
Authority to supply the copy of the deposition of the Department
Witness No.1 and any other witnesses as would be examined in
the departmental proceeding soon after their examination, to
enable him to make himself ready for final hearing. However, the
said petition was rejected by the Inquiring Authority on the
ground that there was no such provision in the 1962 Rules to
provide copy of the deposition of the witness in the midst of the
inquiry which would be supplied to him with the inquiry report by
the Disciplinary Authority after conclusion of the inquiry.
(xvii) It is the further case of the petitioner that
after such rejection of the petition filed by the petitioner for
supplying relevant documents, taking of evidence begun from
both the parties and when the turn of the petitioner came,
before adducing his evidence, he filed three petitions before the
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Inquiring Authority i.e., (i) the petition to recall the Department
witness No.1 for further cross-examination; (ii) a petition to
direct the Marshaling Officer to produce true copy of the order
dated 7th April, 2021 passed in W.P.(C) No.11802 of 2020
(Orissa High Court Employees Association -Vrs.- Orissa High
Court, Cuttack & Ors.) and (iii) to issue notice to the co-
delinquent officers, Dr. Pabitra Mohan Samal, the then Registrar
(Judicial) I/c and Shri Janmejay Das, the then Dy. Registrar
(Judicial) for their examination/confrontation by the petitioner,
but the Inquiring Authority did not find any merit in all those
three petitions and instantly on the very day of its filing, rejected
those petitions and thereafter, proceeded to take evidence of the
petitioner on the same date and finally closed the proceeding
and posted the case to 3rd September, 2022 for preparation of
inquiry report.
(xviii) It is the further case of the petitioner that on
15th September, 2022, the petitioner received the notice of the
Court vide No.13986 dated 9th September, 2022 through its
department i.e., L & ESI Department, Govt. of Odisha under sub-
rule (10)(i)(a) of the Rule 15 of the 1962 Rules along with the
inquiry report dated 3rd September, 2022 of the Inquiring
Authority with a direction to submit representation, if any, within
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15 days as regards the findings of the Inquiring Authority in the
inquiry report dated 3rd September, 2022.
(xix) It is the further case of the petitioner that on
perusal of the inquiry report, it is found that the Inquiring
Authority held the petitioner and co-delinquent Shri Janmejay
Das guilty of three charges i.e. (a) Gross Misconduct; (b)
Dereliction of Duty and (c) Administrative indiscipline while
dealing with judicial records but at the same time exonerated
from the charge of failure to maintain absolute integrity and
honesty and the Inquiring Authority pleased to also recommend
the punishment of reduction to the lower grade in the pay.
However, to the utter dismay and surprise, with the same set of
fact and evidence, Inquiring Authority was pleased to exonerate
co-delinquent Dr. Pabitra Mohan Samal, who had initially handled
the copy of the order dated 24th February, 2021 of the said
Division Bench and endorsed the same to the D.R(J), of all the
charges.
(xx) It is the further case of the petitioner that
although there is no dispute about the fact which gave rise to
registration of the Suo Motu Writ Petition, but surprisingly it is
seen from the memo of charge issued to the co-delinquent Dr.
Pabitra Mohan Samal, the then Registrar (Judicial) I/c that the
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fact/imputation of statement as against him is completely
different and narrated a completely different story. Even though
such discrepancy was candidly admitted by the Department
Witness No.1 in his evidence, but Inquiring Authority did not
take any step to remove such a glaring discrepancy which finally
gave way for exoneration of co-delinquent Dr. Pabitra Mohan
Samal of all the charges, when the petitioner was held guilty in
respect of three head of charges, on self-same fact and incident.
(xxi) It is the further case of the petitioner that in
obedience to the aforesaid notice dated 9th September, 2022, the
petitioner submitted his representation under sub-rule (10)(i)(a)
of the Rule 15 of the 1962 Rules through its department on 26th
September 2022 with a prayer to exonerate him of all the
charges as suggested against co-delinquent Dr. Pabitra Mohan
Samal taking into account all the evidence available in his
favour, his past unblemished service career so also the written
note of submission dated 30th August, 2022 which was not at all
considered by the Inquiring Authority.
(xxii) It is the further case of the petitioner that
without taking into consideration the representation dated 26th
September, 2022 in its proper prospective and even without
giving any findings on the charges, said to have been established
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against the petitioner, as required under sub-rule (9) of the Rule
15 of the 1962 Rules, the Disciplinary Authority, inter alia,
proposed to award with major penalty to the petitioner of
reduction to a lower grade i.e. Selection Grade in the cadre of
District Judge as envisaged in sub-rule (vi) of Rule 13 of the
1962 Rules. Further, it was also clarified that upon reduction to
the lower grade of Selection Grade, the pay of the petitioner
would be fixed at the initial scale of the Selection Grade with
entitlement to annual increments in the Selection Grade and that
the petitioner's upgradation to the next higher grade of Super
Time Scale would be considered after five years. The Court
accordingly, by notice No.16840 dated 3rd November, 2022
asked the petitioner to submit representation, if any, in
accordance with Rule 15(10)(i)(b) of the 1962 Rules against the
proposed penalty within ten days from the date of receipt of the
above notice.
(xxiii) It is the further case of the petitioner that
vide notification No.2100 dated 21st December, 2022, the Court
pleased to observe that the misconduct of the petitioner, a
Senior Judicial Officer holding an important position of trust,
responsibility and confidence in the organizational hierarchy of
the High Court cannot be condoned and accordingly, awarded
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the petitioner with major penalty of reduction to a lower grade
i.e., Selection Grade in the rank of the District Judge as
envisaged in sub-rule(vi) of Rule 13 of the 1962 Rules and
further clarified that upon reduction to the lower grade of
Selection Grade, the pay of the petitioner would be fixed at the
initial scale of Selection Grade with entitlement of annual
increments in the Selection Grade with further stipulation that
his upgradation to the next higher grade in the Supertime Scale
would be considered after five years.
(xxiv) It is the further case of the petitioner that
pursuant to the aforesaid order of the Court, the opposite party
No.1 in its order No.6950 dated 16.02.2023 re-fixed the revised
judicial scale of pay, 2022 at Rs.1,63,030/- in Cell No.1 of Level
J-6 (Selection Grade) of the pay Matrix w.e.f. 21st December,
2022 with further stipulation that the upgradation to the next
higher grade in the Supertime Scale will be considered after five
years from the date 21st December, 2022.
3. In response to the notice issued by this Court as per
order dated 12.10.2013, all the opp. parties being represented
by the Special Officer (Administration), High Court of Orissa filed
their counter affidavit to the writ petition.
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(i) In the counter affidavit, the stand has been taken
that initiation of disciplinary proceeding, appointment of
Inquiring Authority and the consequential action of imposition of
punishment were lawful and were done by following the cardinal
principles of natural justice and not in violation thereof as
alleged. The imposition of major penalty on the petitioner is not
disproportionate as alleged. The Court imposed major penalty
taking into consideration all the surrounding materials which is
quite evident from the notification dated 21.12.2022 itself. It is
stated that the copy of the order dated 24.02.2021 of the
Division Bench which is discussed is an unsigned one. It is also
stated that the contention that the then DR (Judicial) Sri J. Das
placed the note sheet before the petitioner on 26.02.2021 and
urged to approve the same is against the materials on record. It
is further stated that DR (Judicial) Sri J. Das in his written
statement of defence in D.P. No.3 of 2021 has rather stated that
it was the petitioner who after discussion with the Senior Judge
of the Division Bench which passed the order, had instructed him
to place the notes before him (petitioner).
(ii) It is further stated that soon after the
registration of Suo Motu Writ, the same came to the knowledge
of Hon'ble the Chief Justice from other source and thereafter the
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petitioner was transferred from the Registry of the Court to the
District of Rayagada as the District Judge.
(iii) It is further stated that the petitioner acted
carelessly in approving the note sheet without the original order
passed by the Hon'ble Division Bench. The petitioner instead of
approving the note on the basis of telephonic instruction of the
Presiding Judge, should have examined the concerned record.
The plea taken by the petitioner that in order to give effect to
the judicial order, he acted with promptitude on good faith is an
afterthought stand in order to escape from his administrative
responsibility.
(iv) It is stated that the contents are matters of
record and at the time of transfer of the petitioner from
Rayagada to the Industrial Tribunal, Rourkela, D.P. No.3 of 2021
had been initiated which was within his knowledge. As per the
Circular No.787/L dated 28.01.2010, as the transfer was made
on administrative ground, the disturbance allowance was denied
to him. The contention of the petitioner that the "Memo of
Evidence" was not supplied to him along with the Memorandum
dated 09.12.2021 was denied. The Memorandum itself speaks
that the list of documents by which and a list of witnesses by
whom the articles of charge were proposed to be sustained. That
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apart, while submitting his written statement of defence, the
petitioner had never pointed out that he did not receive the
"Memo of Evidence". After receipt of the written statement of
defence of the petitioner, the Court in its prudence resolved for
inquiry into the charges and Inquiring Authority was appointed.
(v) It is further stated that the provision of Joint
Inquiry as provided in Rule 17 of the 1962 Rules is not
mandatory which would be evident from use of the word "may"
therein. There is also nothing in the said Rules prescribing
different set of procedure of inquiry under Rule 15 and Rule 17.
The provision contained in Rule 17 of the 1962 Rules does not
prescribe that failure to adhere to Rule 17 in inquiry of more
than one delinquent, will vitiate a proceeding. The petitioner
could not explain as to how he was prejudiced due to inquiry
under Rule 15 instead of Rule 17. The entire inquiry was lawful
and has been conducted giving due regard to the principles of
natural justice.
(vi) It is stated that the contents are matters of
record and though the contention of the petitioner is that he
should have been supplied with the order dated 04.04.2021 of
Hon‟ble the Chief Justice, but the same is nothing more than a
chart of sequence of events which the petitioner had inspected.
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The truth is that as per directions, explanations were sought
from the petitioner and the other two delinquents, but the same
cannot be held to be a vital document which ought to have been
supplied to the petitioner. Moreover, the same was not even
marked as an exhibit by the Inquiring Authority in the
disciplinary proceeding. When the petitioner inspected the order,
non-supply thereof cannot be said to have caused any prejudice
to him as claimed. Similarly, the order dated 09.09.2021 passed
in Suo Motu Writ Petition (Civil) No.7943 of 2021 was never in
dispute and also never a document necessary for the purpose of
inquiry. The manner of initiation of Suo Motu Writ Petition (Civil)
No.7943 of 2021 formed the basis of inquiry not the manner of
its disposal. Moreover, it is not the case of the petitioner that the
case was not disposed of. Further, he has not challenged the
final order passed therein. It is stated that in absence of any
specific provision in 1962 Rules for supply of copies of deposition
in the midst of inquiry, the petitioner was rightly denied supply
of statement of Department Witness No.1 on 30.07.2022.
However, after conclusion of the inquiry, he was supplied with
the inquiry report along with the statements of the witnesses
which he had filed. The entire inquiry and recording of the
deposition of the witnesses was carried out by the Inquiring
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Authority in the presence of the petitioner and not behind him.
The contention of the petitioner that the entire proceeding was in
violation of natural justice and that it was not fair and
transparent is a myth.
(vii) So far as the rejections of the three petitions of
the petitioner are concerned, the same were disposed of by the
Inquiring Authority considering their merits. The petition to recall
the Department Witness No.1 for further cross-examination was
felt to be not required as the petitioner had cross-examined him
(Department Witness No.1) at length earlier. The second petition
for calling for the original copy of order dated 07.04.2021 in
W.P.(C) No. 11802 of 2022 was also felt unnecessary as the
petitioner had filed the downloaded copy thereof which was not
disputed and he was asked to utilize such downloaded copy in his
favour if he so wanted. The other petition to issue notice to the
other two delinquent officers did not find favour with the
Inquiring Authority as prior thereto, both of them had declined to
adduce their respective evidence in the inquiry. That apart, the
petitioner had prayed for examining them in order to confront
them with the facts asserted in the preliminary show-cause and
written statements of defence which were matters of record,
were undisputed. Hence, their examination was found to be not
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essential. So far as the contention regarding non-supply of
copies of order sheets is concerned, the petitioner had never
raised such claim at any point of time before the Inquiring
Authority. The petitioner has also not mentioned as to in what
way he was prejudiced due to non-supply of the copies of orders
and thus, the same cannot be said to have violated any principle
of natural justice.
(viii) It is stated that in absence of any specific
provision in 1962 Rules for fixing a date for summing up of the
case by both the parties, the Inquiring Authority in its wisdom
preferred to prepare the inquiry report after the conclusion of
evidence from both the sides. It is also not the case of the
petitioner that the department was allowed to sum up its case
and not the petitioner. The procedure which was adopted by the
Inquiring Authority was the same for both the department and
the delinquents. There is absolutely no violation of principle of
natural justice. It is stated that the Inquiring Authority had taken
all the materials into consideration and found the petitioner and
delinquent Sri Dash guilty of the charges while exonerating
another delinquent Sri Samal thereof. The Inquiring Authority
has given ample reasons for the conclusion arrived at in the
report. There is nothing in the report for the petitioner to be
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shocked as Shri Samal unlike the petitioner and Shri Das had a
limited role in the entire process.
(ix) It is stated that the petitioner is under the
mistaken notion that in a common inquiry, all the delinquents
are to be commonly judged irrespective of their degree of
involvement and culpability. The Inquiring Authority after due
inquiry exonerated Dr. Samal from the charges and the same is
no way connected with the petitioner.
(x) It is further stated in the report that since Sri
Samal had a limited role in the entire scenario by marking the
document to the DR (Judicial) on a day when he was in charge of
the Registrar (Judicial), he was exonerated with suggestion that
he should be warned to be more cautious in future. Per Contra,
the Inquiring Authority taking into consideration the gravity of
misconduct recommended the penalty of reduction to lower
grade of pay against the petitioner and Sri Das. The imposition
of penalty on the petitioner by the Court was also done after
taking his representation under Rules 15(10)(i)(a) and
15(10)(i)(b) of 1962 Rules into consideration. It is stated that
not only did the findings arrived at the inquiry report were
considered and accepted, but also in compliance of Rule 15 (9.A)
of the 1962 Rules, the representation under Rule 15(10)(i)(a)
Page 25 of 90
26
and subsequent representation under Rule 15(10)(i)(b) of 1962
Rules were invited from the petitioner. The petitioner‟s
contention that the entire proceeding was vitiated and natural
justice has been violated is baseless and without a grain of truth.
The petitioner was granted opportunity at every stage of the
inquiry and at all the subsequent stages as per Rules. The
disciplinary authority duly considered the representation
submitted by the petitioner and thereafter imposed penalty on
him.
(xi) The provisions of 1962 Rules have been
scrupulously followed while imposing penalty on the petitioner,
therefore, impugned order does not require interference of this
Court. The surreptitious conduct of the petitioner in the entire
sequence of events while heading the Registry as has been
highlighted by the Inquiring Authority justifies the penalty
imposed on him.
(xii) It is further stated that the contention of the
petitioner that his representation has not been considered at all
is a wild conjecture and is far from truth. As a matter of fact, his
representation was considered in its true perspective and
thereafter penalty was imposed on him.
Page 26 of 90
27
(xiii) It is stated that the Inquiring Authority never
travelled beyond the charges during the inquiry and have
examined all the aspects meticulously. The Inquiring Authority
had never misread the imputations of misconduct as alleged. It
rather appears that the petitioner had misread the same and
derived his own meaning therefrom. It is stated here that the
approval of the note sheet which the petitioner seeks to trivialize
was actually the trigger point which unleashed a flurry of
consequential events which, if not timely detected, could have
been fatal.
(xiv) Furthermore, it was not only approval of a
mere note sheet, but also acting on an unsigned order which is
very much there in the first limb of the imputations of
misconduct. The petitioner has contended that the words
„practice and procedure‟ are absent in the Articles of Charge and
Statement of Imputations of Misconduct whereas it finds place in
Para-7 of the inquiry report.
(xv) It is further stated that the practice and
procedure which have been violated by the petitioner have been
mentioned quite clearly in the initial two limbs of both Articles of
Charge and Statement of Imputations of Misconduct. It is stated
that the findings arrived at in the inquiry are in accordance to
Page 27 of 90
28
the charges leveled. The contention of the petitioner that the
Inquiring Authority had collected the evidence is against the
materials on record. The petitioner has perhaps forgotten the
basic tenet of inquiry that it was the Marshalling Officer who
tendered the evidence on behalf of the department in presence
of the petitioner before the Inquiring Authority. There was never
a point in the evidence that the petitioner had raised any
objection that the Marshalling Officer had tried to prove
extraneous aspect.
(xvi) It is further stated that it was the petitioner
who was beating around the bush during the cross-examination
highlighting/suggesting about his own so-called past efficiency.
(xvii) It is further stated that all the findings of the
Inquiring Authority are spot-on and are in keeping with the
Articles of Charge and the imputations of misconduct. It is stated
that the contents are matters of record and the evidence
adduced by the Department Witness no.1 on whose testimony
the petitioner relied upon is exactly the evidence which the
Inquiring Authority took into consideration while returning a
finding against the petitioner. The inquiry report is a complete
document by itself which has adequately dealt with all the
aspects and any addition thereto will tantamount to bringing
Page 28 of 90
29
fresh salvo against the petitioner. The contention of the
petitioner that the department had failed to establish any of the
charges against him is figment of his own imagination and is far
from truth.
(xviii) It is further stated that the petitioner has
deduced his own logic out of nowhere that there is no bar to act
on an unsigned order of a Division Bench so far relates to only
registration of a Suo Motu writ petition more particularly when
admittedly one of the Senior Judge presiding the Bench was
consulted and confirmed about such order with suitable
instruction to carry out the same. It is further stated that there is
no codified provision for registration of Suo Motu proceeding or
writ, the petitioner seeks to justify his action of approval of the
note sheet for registration of the same.
(xix) It is further stated that the petitioner cannot
and should not be allowed to blow hot and cold at the same
breath. On one hand, he claims that he had no knowledge at the
time of approving the note sheet that the order was unsigned
which as per his words was an act "done on good faith by
oversight", "an inadvertent mistake" and "an error of judgment"
and on the other, he tried to justify his action of approval by
slating that there was no bar in registration on the basis of an
Page 29 of 90
30
unsigned order after orally consulting a Senior Judge of the
Bench.
(xx) That apart, absence of a codified provision in
express words should not be misconstrued as giving a free hand
to an officer in the Registry to do and undo things at his own
sweet will, to consult or ignore any Judge as per wish and/or to
willfully keep the Chief Justice under ignorance. On the other
hand, if there is no express provision for something, an officer is
put on guard before acting; he/she is to be circumspect before
taking a call on something; he/she is to inform the Chief Justice
and is required to take orders before acting. Not resorting to any
such course and trying to justify his action by boasting of
absence of any codified procedure, the petitioner‟s claim that the
department failed to prove that the registration of Suo Motu
proceeding was not to be acted upon without approval of the
Chief Justice deserves to be rejected.
(xxi) It is stated that the inquiry report dealt with all
the concerns raised by the petitioner. The petitioner despite
being the erstwhile Registrar General pretends to be blissfully
unaware of the allocation of duties amongst the officers of the
Registry. The contention of the petitioner as to what he would
have done if he knew that the order was unsigned, or that there
Page 30 of 90
31
was a dissenting view or that he was under an impression that it
was a routine compliance, are not matters to be dealt with in this
proceeding.
(xxii) It is further stated that there cannot be any
direct evidence of motive and proof of motive, in all cases is not
mandatory and merely because motive could not be brought out
in an administrative inquiry is not a ground to brand an inquiry
to be vitiated or to chastise an inquiry report to be perverse. The
contents of this paragraph would rather show that the petitioner
himself is confused and the inquiry report is not full of surmises
and conjectures as he has delved on what he would have done
had the circumstances been otherwise.
(xxiii) It is stated that the statement of the
Department Witness No.1 has been duly considered by the
Inquiring Authority while deriving conclusions in the report.
Dissecting the etymological meaning of a word recorded in
evidence and to say that the report is based on surmises and
conjectures is unwarranted on the part of the petitioner.
(xxiv) It is further stated the then DR (Judicial) in
his written statement of defence has stated that the note sheet
was put up by him as per the instructions of the petitioner. The
Inquiry Report has taken all the submissions of the delinquents
Page 31 of 90
32
including the petitioner and the department into consideration
while arriving at the conclusions, which is never vitiated from
any angle.
(xxv) It is stated that the petitioner has tried to
justify his own wrong by submitting that Suo Motu proceeding
was already initiated by the Bench as is evident from the tenor of
the order dated 24.02.2021 and that registration only remained
a mere formality. It is further stated that if registration was a
mere formality, it should have been registered then and there on
24.02.2021 itself. Further, in such event, what was the need for
approval of a Registrar General, who never had any business to
meddle in the judicial matters. Despite that the petitioner had
chosen to approve a note sheet which had its root on an
unsigned order which catapulted the registration of the Suo Motu
Writ Petition. The acts of the petitioner was out and out wrong
and no amount of justification can come to his rescue. In the
Inquiry Report, it has been clearly stated that Ext.5 was a mere
scrap of paper containing some purported directions of a Division
Bench of the Court. Such categorical words of the report
summarize the validity of Ext.5. Any other interpretation of Ext.5
as is made by the petitioner is without any basis.
Page 32 of 90
33
(xxvi) It is stated that the petitioner cannot equate
his own position with that of co-delinquent Shri Samal as Shri
Samal was in-charge of Registrar (Judicial) on that fateful day,
while the petitioner was heading the Registry then. The reason
for exoneration of Shri Samal and the imposition of penalty on
the petitioner have been succinctly detailed in the inquiry report,
which did not require any supplement by these opp. parties.
(xxvii) It is further stated that at Para-12 and 13 of
the report, the Inquiring Authority has mentioned as to how the
conduct of the petitioner were characterized as „misconduct‟. The
contentions of petitioner about absence of any codified rule have
already been dealt with in the preceding paragraphs.
(xxviii) It is stated that the then Chief Justice was a
prime member of the Disciplinary Authority who was in a position
to influence the decision making process was far from truth. As a
matter of fact, the Disciplinary Authority in the matter was the
High Court as per the definition available at Rule i.e. The Rules of
the High Court of Orissa, 1948 (hereafter "1948 Rules"). The
matter of the inquiry in D.P.No.03 of 2021 was not the subject
matter of the merits of the Suo Moto writ petition. That apart,
merely because the Inquiring Authority happened to be one of
the members of the Bench, the same per se does not render the
Page 33 of 90
34
inquiry illegal. No circumstance has been brought out in the writ
petition to show bias of the Inquiring Authority and the petitioner
at no point of time had expressed his reservations on
appointment of the Inquiring Authority. Only after the adverse
finding, the petitioner has come up with these kinds of
afterthought pleas in desperation to stay afloat.
(xxix) It is further stated that the inquiry report is
very clear about the grave nature of acts of the petitioner and
the punishment imposed by the Disciplinary Authority was never
disproportionate, but was quite appropriate. The punishment as
prescribed in the 1962 Rules was never exhaustive to deal with
each and every situation. The penalty imposed on the petitioner
is just, proper, in proportion with the misconduct and needs no
interference by this Court.
FINDING IN INQUIRY REPORT Dt.03.09.2022
4. The Inquiring Authority has observed as follows:-
"10. As stated earlier, none of the delinquent
officers dispute the note under Ext.4 prepared
and placed by Shri Janmejaya Das and approved
by Shri Malaya Ranjan Dash. Further, Ext.5 and
the endorsement of Dr. Pabitra Mohan Samal
under Ext.5/1 on it also remains undisputed by
Dr. Pabitra Mohan Samal and other two
delinquent officers. The signatures and
Page 34 of 90
35
endorsement under Exts.4/1 and 4/2 on Ext.4
are admitted by Shri Janmejaya Das and Shri
Malaya Ranjan Dash. Similarly the registration of
Suo Motu W.P.(C) No.7943 of 2021 and
consequent communication and receipt of copy
of Ext.5 by the Office of Advocate General
through Department Witness No.2 as endorsed
under Exts.1/2 & 3/2 are neither doubted nor
disputed by any of the parties. In other words,
all such documents brought on record under
Exts.1 to 5 and the signatures and endorsement
appearing on them remains admitted without
any sort of doubt.
11. It needs to be mentioned at the outset
that none of the delinquent officers have ever
whispered anything about intimating the Chief
Justice on Ext.5 or such discussions made with
Justice......or the instructions given by her to
them till 2nd March, 2021 when he came to
know about the same from other
source...Usually a Suo Moto Writ Proceeding is
initiated by the order of the Chief Justice or a
Bench consisting of the Chief Justice as one of
the member. Despite all such rules and
guidelines, neither Janmejaya Das nor Malaya
Ranjan Dash in the capacity of Deputy Registrar
(Judicial) and Registrar General respectively did
think it proper to bring such an unusual fact of
initiation of Suo Motu Proceeding based upon a
plain unsigned document under
Page 35 of 90
36
Ext.5....Department Witness No.1, the present
Registrar (Judicial) had worked for a long tenure
in the Court in the capacity of Deputy Registrar
(Judicial) as well as in his present post, who has
specifically said that initiation of a Suo Motu
Proceeding; by a Division Bench other than the
Chief Justice is itself an unusual fact and
therefore it is incumbent upon the officers of the
Registry to bring the same to immediate
attention of the Chief Justice. Admittedly, none
of the delinquent officers being the key
Registrars of the Court did even attempt to bring
it to the notice of the Chief Justice.
12. With regard to the authenticity of Ext.5
as a valid Judicial Order that prompted the
delinquent officers to act upon, it is explained by
all the delinquent officers that they acted on
good faith and bona fide belief upon Ext.5 as a
valid judicial order. It needs to be reiterated
here that admittedly Ext.5 is not a signed order
nor is it endorsed to be a true copy of the order
with authorized signatory. Ext.5 reveals to be a
mere scrap of paper containing some purported
directions of a Division Bench of the Court. None
of the delinquent officers claim to have made
any attempt to see or verify the original order or
the file, which of course was their first duty....As
such, the explanation offered by Shri Malaya
Ranjan Dash and Shri Janmejaya Das that they
acted bonafidely, is not found convincing
Page 36 of 90
37
because the circumstances showing their
doubtful conduct to ignore the other Judge as
well as the Chief Justice is deplorable. They
failed to explain this. It casts doubt on their
conduct. However, in absence of any
conspicuous material to satisfy their dishonest
intention, it cannot definitely be opined that they
did so dishonestly. So the charge with regard to
failure to maintain absolute integrity and
honesty is not established.
13. Shri Malaya Ranjan Dash says in his
written statement that the approval of the note
under Ext.4 by him is an error and inadvertent
mistake. He further says that it was an error of
judgment not actuated with any mala fide
dishonest intention. But in my humble opinion, it
is not an error of judgment, rather a deliberate
misconduct....As such, the charges of gross
misconduct, dereliction of duty and
administrative indiscipline are well established
against Shri Janmejaya Das and Shri Malaya
Ranjan Dash. Accordingly, both of them are
found guilty of those three charges.
xx xx xx xx xx
15. In view of the discussions made above
and the reasons stated, and considering the
entirety of the charges, the imputations thereof
as well as the gravity of misconduct, the
punishment of reduction to the lower grade in
Page 37 of 90
38
the pay is recommended against Shri Janmejaya
Das and Shri Malaya Ranjan Dash."
Submissions on behalf of the petitioner:
5. Mr. Budhadev Routray, learned Senior Advocate
appearing for the petitioner contended that the order dated
24.02.2021 was passed in open Court when Bench assembled
and it was not varied till the date of registration of the Suo Motu
Writ Petition which would be evident from the order dated
07.04.2021 passed by same Division Bench in W.P.(C) No.11802
of 2020 under Annexure-17 which has been marked as Ext.A
from the side of the petitioner in the departmental inquiry.
Therefore, such an order becomes operative even without the
signatures of the Hon‟ble Judges. In support of his submission,
he relied upon the decisions of the Hon‟ble Supreme Court in the
cases of Surendra Singh & Ors. -Vrs.- The State of U.P.
reported in (1953) 2 Supreme Court Cases 468 and Vinod
Kumar Singh -Vrs.- Banaras Hindu University reported in
(1988) 1 Supreme Court Cases 80.
He further contended that admittedly the copy of the
order was sent after dictation in open Court, unaccompanied with
the dissenting order which was penned subsequently. The note
sheet was approved for registration of Suo Motu Writ Petition, on
Page 38 of 90
39
last hour of the day of its stipulated date of compliance on good
faith and there is no malafide intention or without violating any
definite Rule or law. Merely basing on the claim of the
department that there was a convention/practice to act upon an
original order only in case of registration of Suo Motu Writ
Petition, otherwise it should have been brought to the notice of
Hon‟ble Chief Justice, the charges of gross misconduct,
dereliction of duty and administrative indiscipline could not have
been said to be well established against the petitioner. The act of
approval by the petitioner can at best be termed as an error of
judgment, but certainly not „misconduct‟ when it was merely for
registration of a case for hearing of the matter by the Division
Bench of the Court and no party was going to be prejudiced or
harmed by such registration or notice. According to him,
misconduct arises from wrongful intention and ill motive, but an
act of negligence, errors of judgment, or innocent mistake do not
constitute misconduct. In support of his submission, he relied
upon the decisions of the Hon‟ble Supreme Court in the cases of
Union of India and Others -Vrs.- J. Ahmed reported in
(1979) 2 Supreme Court Cases 286, Insp. Prem Chand
-Vrs.- Govt. of NCT of Delhi reported in (2007) 4 Supreme
Court Cases 566 and Abhay Jain -Vrs.- High Court of
Page 39 of 90
40
Judicature for Rajasthan reported in (2022) 13 Supreme
Court Cases 1.
He argued that the order was valid in the eyes of law
being dictated in open Court and communicated through proper
channel. There was no scope for the Registry either to see the
order of the Court in distrust or verify its authenticity and if at all
it was an error but to err is human and cannot be termed as
grave misconduct particularly when there is no violation of
definite Rule/Law/Procedure. Acts of misconduct must be
precisely and specifically stated in the rules or standing orders
and cannot be interpreted ex-post facto by the department. He
relied upon the decisions of the Hon‟ble Supreme Court in the
cases of A.L. Kalra -Vrs.- Project & Equipment Corporation
reported in (1984) 3 Supreme Court Cases 316 and Vijay
Singh -Vrs.- State of Uttar Pradesh and others reported in
(2012) 5 Supreme Court Cases 242.
Learned counsel for the petitioner further argued that
without quoting any specific provision or guideline and contrary
to the evidence of the Department witnesses, the Hon‟ble
Inquiring Authority held that the guidelines for functioning of
each Officer of the Registry have been issued from time to time
prescribing their duties and despite all such guidelines, the
Page 40 of 90
41
petitioner in the capacity of Registrar General, did not think it
proper to bring such unusual fact of initiation of Suo Motu
Proceeding based upon a plain unsigned document under Ext.5.
According to him, if there is no such guidelines to show that the
order passed by a Bench in open Court for initiation of Suo Motu
Proceeding is to be brought to the notice of the Hon‟ble Chief
Justice or it is to get approval of the Hon‟ble Chief Justice before
its registration in spite of the order passed by a Bench, the
finding of the Hon‟ble Inquiring Authority is perverse and not
legally sustainable.
Learned counsel further contended highlighting
discrimination that the co-delinquent Dr. Pabitra Mohan Samal,
the then Registrar (Judicial) I/C was exonerated though he was
implicated basing on the same incident and had a pivotal role to
play. In fact, the unsigned order was first received by him, who
endorsed it to the Deputy Registrar (Judicial) and he was
exonerated on the plea that he was in the charge of Registrar
(Judicial) on that day only.
The learned Senior Counsel emphasised that the
imposition of punishment under Annexure-22 is shockingly
disproportionate and even past unblemished service record of
the petitioner was not considered. In support of his submission,
Page 41 of 90
42
he placed reliance upon a decision of this Court in the case of
Subash Chandra Panda -Vrs.- State of Odisha and others
reported in 2013 (I) ILR-CUT 750.
While concluding his argument, learned Senior
Counsel urged that in the factual scenario and in the interest of
justice, the impugned notification no.2100 dated 21st December
2022 under Annexure-22 and the consequential office order
no.6950 dated 16th February, 2023 under Annexure-23 be
quashed and the writ petition be allowed granting all
consequential service benefits to the petitioner as per law.
Submissions on behalf of the opposite parties:
6. Mr. Pitambar Acharya, learned Advocate General,
being ably assisted by Mr. Aurobinda Mohanty, learned Addl.
Standing Counsel on the other hand, fairly submitted that if in a
Division Bench, an order was dictated in open Court by one of
the Hon‟ble Judge and the other Hon‟ble Judge has not dissented
from it in open Court, it is to be accepted that the order was
passed on consensus. Such an order becomes operative even
without signature of the learned Judges and cannot be altered
thereafter and if any dissenting view is given thereafter, it is
unsustainable. Signing is a formality to follow when
judgment/order is pronounced in open Court and such
Page 42 of 90
43
judgment/order to be operative does not await signing thereof
by the Court. He emphasised that it is nobody‟s case that the
order was not dictated in open Court and that after one of the
Hon‟ble Judges dictated the order in open Court, the other Judge
gave his dissent in open Court or dictated the dissenting order in
open Court and therefore, such order becomes operative even
without signature of both the Hon‟ble Judges. He further argued
that since the order was not varied till the date of registration of
the Suo Motu Writ Petition and admittedly, there is no rule or
guidelines that the permission of Hon‟ble Chief Justice is required
to be taken for registration of the Suo Motu Writ Petition even in
spite of the open Court order, therefore, no fault can be found
with the petitioner in approving the note placed before him
relating to registration of the case. He fairly stated that in the
factual scenario, there is nothing about any wrongful intention or
ill motive on the part of the petitioner, but it may be an act of
negligence or errors of judgment which is difficult to be said to
be gross misconduct, dereliction of duty and administrative
indiscipline. He endorsed the submission made by the learned
Senior Counsel for the petitioner that in view of the past
unblemished service record of the petitioner, punishment
imposed on the petitioner is shockingly disproportionate.
Page 43 of 90
44
Our observation on perusal of original records:
7. When the matter was taken up for hearing on
31.01.2025, we summoned the entire original records.
Subsequently, again on 07.02.2025, we directed Registry of this
Court to produce the original records in a sealed cover. We had
the advantage of perusing the entire file of the departmental
proceeding as well as the proceeding pertaining to the Suo Moto
case.
Perusal of the original records produced before us in
the sealed cover shockingly revealed certain aspects, which was
confronted to the Registry Officials present in the Court and also
to the learned Advocate General, however, none could
satisfactorily answer to the query of the Court. We refrain
ourselves from delving upon those aspects, rather would confine
ourselves to the limited issues prominently highlighted before us.
It appears from the records that the whole case hinges upon the
two documents, which we felt it appropriate to reproduce.
A. On 24.02.2021 open Court hearing took place and
the Division Bench pronounced the order in the open Court
directing registration of a suo motu case. The Court after taking
consent from the learned Senior Counsel present in the Court,
appointed them as Amicus Curiae. There was no dissent
Page 44 of 90
45
expressed in the Court by any of the Hon‟ble Judges to the
proceeding. The order No 1, dated 24.02.2021 dictated in the
open Court is reproduced hereunder:
1. 24.2.2021 The Odisha Reservation of Posts and
Services (For Socially and Educationally Backward
Classes) Act, 2008 regarding reservation of SEBC
category has already been quashed by this Court in
the Judgment dated 29.6.2017. After quashing of the
said Act, the Reservation in respect of SEBC category
is still going on in respect of the advertisement
issued by the State Government, Public Sector
Undertakings and even by this Court. In the
meantime, four years have already passed and no
further legislation was made by the State
Government as stated above and it is a continuous
cause of action and the above State functionaries are
violating the Court's order.
Since it came to the knowledge of the Court that
the said Reservation is still continuing without taking
further step by the Government, this Court initiates a
Suo Motu proceeding impleading the State
Government as well as the Registrar (Judicial) of this
Court as Opposite Parties and engage Mr. Buddhadev
Routray, learned Senior Advocate, Mr. Manoranjan
Mohahty, learned Senior Advocate and Mr. Ashok
Kumar Mohanty, learned Senior Advocate as Amicus
Curiae to argue the matter. The name of the learned
Amicus Curiae be reflected in the brief as well as in
the cause list.
Page 45 of 90
46
Issue notice to the Opposite Parties i.e. Chief
Secretary, Government of Odisa, Bhubaneswar,
Principal Secretary, General Administration
Department, Government of Odisha, Bhubaneswar
and Registrar (Judicial), Orissa High Court.
Learned Additional Government Advocate shall
accept notice on behalf of the Registrar (Judicial),
Orissa High Court, Cuttack and shall file counter on
his behalf. Counter be filed by the opposite parties by
15th March, 2021.
Copy of this order be supplied to the learned
Senior Advocates engaged as Amicus Curiae by
25.2.2021.
List this matter on 15.3.2021.
Sd-
-----------, J.
-----------, J.
B. On 26.02.2021 the Deputy Register (Judicial) put up
a note before the petitioner for necessary orders by verbatim
reproducing the order dated 24.02.2021. The petitioner
approved the note routinely which according to the petitioner
was done in good faith and consequentially the Suo Motu
proceeding was registered. It is borne out of the record that the
copy of the said order dated 24.02.2021 was also dispatched to
the appointed Amicus Curiae, which was received by one of the
learned Amicus Curie on the same day. It is also apparent on
record that the original proceeding signed by one of the Hon‟ble
Judges was not placed before the petitioner on 26.02.2021. At
least nothing contrary is coming to the fore on record to suggest
otherwise. The note sheet dated 26.02.2021 which was put up
before the petitioner for approval on 26.02.2021 was approved
on the same day.
C. The same Division Bench had the occasion to hear
another allied matter on 07.04.2021 in W.P.(C) No.11802 of
2020. In that proceeding, the Division Bench recorded that the
Second Judge to the Bench had written a separate order
dissenting the First Judge‟s order dated 24.02.2021 only on
02.03.2021 and thus following order was passed:
07. 07.04.2021
This matter is taken up by video conferencing
mode.
Heard Mr.B. Routrai, learned Senior Counsel
appearing for the petitioner.
Pursuant to the earlier order dated 15.3.2021,
Mr. Routrai, learned Senior Counsel submitted that
Court can consider the matter as one of the issue
involved in the present writ petition i.e. the High
Court of Orissa (Appointment of Staff and Conditions
of Service) Rules, 2019 which was notified on 18 th
October, 2019 wherein Rule-3(2) also stipulates
regarding Reservation of vacancies (S.E.B.C.). Even
if the said provision has not been challenged, the
Court can consider the same in view of the decision
of this Apex Court reported in 2016 (9) SCC 749 in
the case of State of Uttar Pradesh Vrs. Dr.
Dinesh Singh Chauhan (Para 18).
A Suo Motu proceeding i.e. Suo Motu W.P.(C)
No. 7943 of 2021 was initiated on 24.2.2021
involving the issue regarding S.E.B.C. reservation
where the Orissa Reservation of Posts and Services
(For Socially and Educationally Backward Classes)
Act, 2008 was quashed by this Court since June,
2017. However, the said reservation is still
continuing.
In the suo motu proceeding the order which was
passed in the Court on 24.2.2021 was served on the
learned counsel who were engaged as Amicus Curiae
on 26.2.2021 with the signature of one of the Hon'ble
Judge. However, on 2nd March, 2021 the Hon'ble
second Judge of the Bench has passed another order
dissenting the views of the Presiding Judge and put
his signature. The said order came to the light of the
day on the aforesaid date i.e.(2.3.2021).
In view of the above fact and circumstances, it
will be better to place the matter before the Hon'ble
Chief Justice to list this matter before the appropriate
Bench.
As the restrictions due to the COVID-19 situation
are continuing, learned counsel for the parties may
utilize a soft copy of this order available in the High
Court's website or print out thereof at par with the
certified copy in the manner prescribed, vide Court's
Notice No.4587 dated 25th March, 2020.
Sd-
-----------, J.
-----------, J.
It is apparent from the above proceeding that the
dissenting view of one of the Hon‟ble Judges to the proceeding
dated 24.02.2021 only came to be recorded on 02.03.2021.
Thus, on 26.02.2021 when the note was put up before the
petitioner, there was no dissent existed on record, rather the
proceeding was conducted in the open Court on 24.02.2021 and
the order that was dictated had been holding field till the one of
the Hon‟ble Judge dissented subsequently.
On the conspectus of the aforementioned factual
scenario germinates from original record, we venture into
analyzing the pleadings and arguments advanced by the learned
counsel for both the parties.
Scope of interference or judicial review with the findings
of disciplinary authority:
8. Before adverting to the contentions raised by the
learned counsel for the respective parties, it would be apt to
discuss here the scope of interference or judicial review with the
findings of disciplinary authority in service matters.
In the case of United Bank of India -Vrs.-
Biswanath Bhattacharjee reported in (2022) 13 Supreme
Court Cases 329, it is held as follows:-
"21. The Bank is correct, when it contends that
an appellate review of the materials and findings
cannot ordinarily be undertaken, in proceedings
under Article 226 of the Constitution. Yet, from
Union of India -Vrs.- H.C. Goel (AIR 1964
SC 364) onwards, this Court has consistently
ruled that where the findings of the disciplinary
authority are not based on evidence, or based
on a consideration of irrelevant material, or
ignoring relevant material, are mala fide, or
where the findings are perverse or such that
they could not have been rendered by any
reasonable person placed in like circumstances,
the remedies under Article 226 of the
Constitution are available, and intervention,
warranted. For any Court to ascertain if any
findings were beyond the record (i.e. no
evidence) or based on any irrelevant or
extraneous factors, or by ignoring material
evidence, necessarily some amount of scrutiny
is necessary. A finding of "no evidence" or
perversity, cannot be rendered sans such basic
scrutiny of the materials, and the findings of the
disciplinary authority. However, the margin of
appreciation of the Court under Article 226 of
the Constitution would be different; it is not the
appellate in character."
Thus, interference by this Court under Article 226 of
the Constitution is warranted when there is no evidence to
establish the misconduct of a public servant after a departmental
enquiry is conducted. This Court in its power of judicial review
does not act as an appellate authority; it does not reappreciate
the evidence adduced in departmental enquiry. The technical
rules of the Evidence Act and the proof of fact or evidence as
defined therein, do not apply to disciplinary proceeding. In other
words, the strict proof of legal evidence and finding on that
evidence or adherence to the provisions of the Evidence Act are
not essential. Question of adequacy of the evidence or reliable
nature of the evidence will not be the grounds for interfering
with the findings in departmental enquiry.
Availability of rule/law/procedure/standing order for
registration of Suo Motu case:
9. In pursuant to the order dated 21.03.2025 as to
whether there is any rule/law/procedure/standing order
regarding permission of the Hon'ble Chief Justice for registration
of Suo Motu case basing on an order passed by the Hon'ble
Court, the Special Officer (Administration), High Court of Orissa
filed an affidavit on 04.04.2025 indicating therein, inter alia, that
he verified the Rules of the High Court of Orissa, 1948 regarding
the existence of any rule/law/procedure/standing order requiring
permission of the Hon‟ble Chief Justice for registration of a suo
motu case basing on an order passed by the Hon‟ble Court but
could not trace the same. Thereafter, a request has been made
to the Registrar (Judicial) of the Court for furnishing such
rule/law/procedure/standing order and as per his instruction, the
Superintendents, Rules Section, List Section and Computerized
Filing Section of the Court were requested to furnish the
rule/law/procedure/standing order, if any, requiring permission
of the Hon‟ble Chief Justice for registration of suo motu case
basing on an order passed by the Hon‟ble Court. It is further
indicated in the affidavit that the Superintendent, Rules Section
of the Court enclosed the copy of judgment dated 05.04.2022 of
Madurai Bench of the Madras High Court in Suo-Motu W.P. (MD)
No.5273 of 2022 and submitted that no rule/standing order of
this Court is available with regard to taking permission of the
Hon‟ble Chief Justice for registration of suo motu case basing on
an order passed by the Hon‟ble Court. It is further indicated that
the Superintendent, List Section of the Court has submitted that
as per usual practice, any order passed by the Hon‟ble Court in
this regard are sent to concerned branch and the branch places
the matter before the Registrar (Judicial) for further course of
action regarding registration of a suo motu case. List Section has
no role regarding registration of suo motu case and also no such
instruction is available in the List Section for registration of suo
motu case. It is further indicated that the Superintendent,
Computerized Filing Section of the Court has submitted that as
per previous practice, the Section receives the Suo Motu Writ
proceedings from the Registrar (Judicial) for the purpose of
registration, as such with approval of the Hon‟ble the Chief
Justice. The procedure is being followed by the concerned
section. Hence, such rule/law/procedure/standing order has not
been encountered by the Section. It is further indicated therein
that no such rule/law/procedure/standing order regarding
obtaining permission of the Hon‟ble the Chief Justice for
registration of suo motu case basing on an order passed by the
Hon‟ble Court is available.
Articles of Charge:
10. The first charge relates to gross misconduct, which is
based on approval of a note of the then Deputy Registrar
(Judicial) and thereby instructing for registration of a Suo Motu
proceeding on the basis of an unsigned order bearing the date
24th February 2021 purported to be of a Division Bench though
the petitioner had no authority to issue such instruction under
Orissa High Court Rules, 1948.
The second charge relates to dereliction of duty,
which is based registration of the Suo Motu proceeding on his
instruction and approval as if he had acted on a validly signed
judicial order passed by the Division Bench of the Court, though
no such signed order was available on record and that an
unsigned order carrying direction for registration of Suo Motu
proceeding was not to be acted upon without the approval of the
Chief Justice.
The third charge relates to administrative indiscipline
while dealing with judicial records, which is based on his
instruction and approval, the Registry of the High Court
registered Suo Motu Writ Petition (Civil) No.7943 of 2021
"Registrar (Administration), Orissa High Court -versus- Chief
Secretary, Govt. of Odisha and Others‟ and sent notices to the
opposite parties enclosing copies of the unsigned order. Office of
the Advocate General, Odisha received the notice and a copy of
such notice was also received by the office of one of the Amicus
Curiae, Mr. Manoranjan Mohanty.
The fourth charge was the failure to maintain
absolute integrity and honesty. The Inquiring Authority held the
charge to be not established.
Whether an order pronounced in the open Court becomes
operative without signature:
11. We have given our thoughtful consideration to the
submissions advanced at the Bar and the materials available on
record.
Adverting to the contentions raised, if we go to the
root of the matter, we find that it is nobody‟s case that the order
was not dictated in open Court in the Division Bench on 24th
February 2021 and that after one of the Hon‟ble Judges (in this
case the Senior Judge) dictated the order in open Court, the
other Judge gave his dissent in open Court or dictated the
dissenting order in open Court on that day.
In the case of Surendra Singh (supra), it is held as
follows:
"14. As soon as the judgment is delivered, that
becomes the operative pronouncement of the
court. The law then provides for the manner in
which it is to be authenticated and made
certain. The rules regarding this differ but they
do not form the essence of the matter and if
there is irregularity in carrying them out, it is
curable. Thus, if a judgment happens not to be
signed and is inadvertently acted on and
executed, the proceedings consequent on it
would be valid because the judgment, if it can
be shown to have been validly delivered, would
stand good despite defects in the mode of its
subsequent authentication."
In the case of Vinod Kumar Singh (supra), it is held
as follows:
"6. The above observations were made, as
already mentioned, in a case where the
judgment had been signed but not pronounced
in the open court. In the present case, we are
concerned with a judgment that had been
pronounced but not signed. The provision in
Order 20, Rule 3 of the Code of Civil Procedure
indicates the position in such cases. It permits
alterations or additions to a judgment so long as
it is not signed. This is also apparently what has
been referred to in the last paragraph of the
extract from the judgment of Bose, J. quoted
above, where it has been pointed out that a
judgment which has been delivered "can be
freely altered or amended or even changed
completely without further formality, except
notice to the parties and re-hearing on the point
of change, should that be necessary, provided it
has not been signed". It is only after the
judgment is both pronounced and signed that
alterations or additions are not permissible,
except under the provisions of Section 152 or
Section 114 of the Code of Civil Procedure or, in
very exceptional cases, under Section 151 of the
Code of Civil Procedure.
7. But, while the court has undoubted power to
alter or modify a judgment, delivered but not
signed, such power should be exercised
judicially, sparingly and for adequate reasons.
When a judgment is pronounced in open court,
parties act on the basis that it is the judgment
of the court and that the signing is a formality to
follow.
8. We have extensively extracted from what
Bose J. spoke in this judgment to impress upon
everyone that pronouncement of a judgment in
court whether immediately after the hearing or
after reserving the same to be delivered later
should ordinarily be considered as the final act
of the court with reference to the case. Bose J.
emphasised the feature that as soon as the
judgment is delivered that becomes the
operative pronouncement of the court. That
would mean that the judgment to be operative
does not await signing thereof by the court.
There may be exceptions to the rule, for
instance, soon after the judgment is dictated in
open court, a feature which had not been placed
for consideration of the court is brought to its
notice by counsel of any of the parties or the
court discovers some new facts from the record.
In such a case the court may give direction that
the judgment which has just been delivered
would not be effective and the case shall be
further heard. There may also be cases, though
their number would be few and far between-
where when the judgment is placed for
signature the court notices a feature which
should have been taken into account. In such a
situation, the matter may be placed for further
consideration upon notice to the parties. If the
judgment delivered is intended not to be
operative, good reasons should be given."
If a judgment/order is dictated in the open Court by
one of the Hon‟ble Judge in a Division Bench and if the other
Judge does not agree with the view expressed (dictated) in open
Court, he would have to pronounce his view/dissent immediately
in the Court itself. When the judgment/order is pronounced,
parties present in the Court know the conclusion in the matter
and often on the basis of such pronouncement, proceed to
conduct their affairs. Even if the parties are not present when
the order is dictated in open Court, the counsels for the
respective parties use to inform their parties. Now-a-days when
the court proceedings are live streamed, the chance of the party
knowing the order instantly and likely to proceed to conduct
himself accordingly is more certain. If what is pronounced in the
Court is not acted upon, certainly litigants would be prejudiced.
A judgment/order pronounced in open court should be acted
upon unless there be some exceptional feature and if there be
any such cause, the same should appear from the record of the
case. Once the judgment/order is pronounced (dictated) in the
open Court on conclusion of arguments, the companion Judge on
the Bench, if he does not agree with the view expressed in the
dictated/pronounced judgment/order, he should express his
dissent either by dictating his opinion/view immediately
thereafter in the open Court itself or should at least inform
counsel appearing for the parties and the parties, if they are
present in the Court, that he does not agree with the view
expressed by the Senior (other) member of the Bench and that
he would be delivering his judgment/order recording dissent
soon. If he fails to do so, the decision which is so pronounced
(dictated) becomes a declaration of the mind of the Bench
(Court) and becomes the operative pronouncement of the Court.
After the judgment/order becomes the operative pronouncement
of the Court, it can be altered or amended and even changed
completely, only with notice to the parties and a re-hearing on
the point of change should that be necessary, provided it has not
been signed.
12. The public trust and confidence in the judiciary
should not go in vain. If confidence in the Judiciary goes, the due
administration of justice definitely suffers. The judiciary is the
guardian of the Rule of law and is the central pillar of the
democratic State. The foundation of the judiciary is the trust and
the confidence of the people in its ability to deliver fearless and
impartial justice. In a Division Bench, when the judgment/order
is dictated in open Court by one Judge and the other Judge does
not express his dissent either by dictating his opinion/view and
remains silent instantly and subsequently passes a dissenting
judgment/order, the public will be confused and there will have
no sanctity in the dictation of an order or judgment in open court
and they have to wait till they verify the order or judgment after
it is signed by both the Hon‟ble Judges.
13. Ext.A marked on behalf of the petitioner in the
departmental inquiry, which is a downloaded copy of the order
dated 07.04.2021 passed in W.P.(C) No.11802 of 2020 by the
same Division Bench which has got nexus with the matter in
which the order dated 24.02.2021 was passed, on the basis of
which Suo Motu Proceeding was registered. In Ext.A, it is stated
as follows:-
"In the suo motu proceeding, the order which
was passed in the Court on 24.2.2021 was
served on the learned counsel who were
engaged as Amicus Curiae on 26.2.2021 with
the signature of one of the Hon'ble Judge.
However, on 2nd March, 2021 the Hon'ble
second Judge of the Bench has passed another
order dissenting the views of the Presiding Judge
and put his signature. The said order came to
the light of the day on the aforesaid date i.e.
(2.3.2021)."
Thus from such order, it is apparent that the order
was passed in the open Court on 24.2.2021 and dissenting view
to the order dated 24.2.2021 came only on 02.03.2021.
In such a scenario, in our humble view, when the
order dated 24.02.2021 was dictated in open Court by the
Hon‟ble Senior Member of the Division Bench and the other
Judge did not express his dissent either by dictating his
opinion/view immediately in the Court itself on that day nor
there is anything on record that he informed the counsel
appearing for the parties and the parties, if any present in the
Court, that he did not agree with the view expressed by the
Senior member of the Bench and that he would be delivering his
judgment/order recording dissent soon, such an order becomes
operative even without signature of the learned Judges.
Thus, we are of the humble view that the order dated
24.02.2021 which was pronounced in the open Court by the
Senior member of the Bench, became operative and such order
to be operative does not await signing thereof by the Court as
signing is a formality to follow after such pronouncement.
14. In the case in hand, as appears from the records that
the copy of the order 24.02.2021 after its dictation in open
Court, unaccompanied with the dissenting order (which came
only on 02.03.2021), was placed with the note sheet before the
petitioner on 26.02.2021 by the Deputy Registrar (Judicial).
In the said order, it was directed that the brief along
with copy of the order was to be supplied to the learned Senior
Advocates engaged as Amicus Curie by 26th February 2021 i.e.,
on that day itself. Since there was a stipulated date of
compliance, obviously, it could not have been unless a case is
registered. The petitioner approved the note sheet for
registration of Suo Motu Writ Petition, on the last day of its
stipulated date of compliance.
The learned Inquiring Authority has not found any
malafide intention on the part of the petitioner in approving the
note sheet placed before him by the Deputy Registrar (Judicial).
However, it has been held that it was not an error of judgment,
rather a deliberate misconduct.
Basing on the decisions of the Hon‟ble Supreme
Court, as we have already held that the order dated 24.02.2021
was pronounced in open Court became operative and such order
to be operative does not await signing thereof by the Court,
therefore terming such order as a „plain unsigned piece of paper‟
by the learned Inquiring Authority is not proper and justified.
The learned Inquiring Authority has not kept in view the ratio
laid down by the Hon‟ble Supreme Court in the aforesaid two
decisions regarding the effect of an unsigned order which was
dictated in open Court by one of the Hon‟ble Judge and the other
Hon‟ble Judge has not dissented from it in open Court.
15. From the affidavit filed by the Special Officer
(Administration), High Court of Orissa on 04.04.2025, it is
apparent that no such rule/law/procedure/standing order is there
regarding obtaining permission of the Hon‟ble Chief Justice for
registration of Suo Motu case basing on an order passed by the
Hon‟ble Court. Therefore, in approving the note sheet placed by
Deputy Registrar (Judicial), the question of violation of any
definite rule or law by the petitioner does not arise.
The claim of the department that there was a
convention/practice to act upon an original order only in case of
registration of Suo Motu Writ Petition otherwise it should have
been brought to the notice of Hon‟ble Chief Justice cannot be
accepted when the same is not mentioned in the article of
charges that any such established practice of the Court has been
violated. There was no material or instances of such practice
placed before the Inquiring Authority by the Department
Witness. It should have at least brought on record the numbers
of suo motu proceedings registered during the tenure of the
petitioner as Registrar General of this Court or even prior to that
and the procedure adopted in such proceedings. Without the
same, the vague statement given by the Department Witness
no.1 that the fact of initiation of a Suo Motu writ petition by a
Bench constituting Judges other than the Hon‟ble Chief Justice is
itself an unusual act, ought not to have been accepted by the
Inquiring Authority when the witness himself states that no
codified procedure or rule is there requiring prior intimation to
the Hon‟ble Chief Justice before approving the note of D.R.
(Judicial) by the petitioner and no written practice or direction is
there.
Law is well settled that mere practice is insufficient.
The fact that an authority has always behaved in a certain way is
no warrant for saying that it ought to behave in that way, but if
the authority itself and those connected with it believe that they
ought to do so, then the convention does exist. Practice alone is
not enough. It must be normative. The practices and function of
a Court are evolved by time looking to particular background and
set of facts. The practice of a Court ripens into a convention by
passage of time and rich heritage of conventions are time tested.
Whether a practice or precedent has become convention, Sir W.
Ivor Jennings in „The Law and the Constitution‟ lays down
following tests:
"...We have to ask ourselves three questions:
first, what are the precedents; secondly, did the
actors in the precedents believe that they were
bound by a rule; and thirdly, is there a reason
for the rule? A single precedent with a good
reason may be enough to establish the rule. A
whole string of precedents without such a
reason will be of no avail, unless it is perfectly
certain that the persons concerned regarded
them as bound by it. And then, as we have
seen, the convention may be broken with
impunity."
If there is no codified procedure or rule and no
written practice or direction and the petitioner just approved the
note sheet placed by Deputy Registrar (Judicial) basing on an
unsigned order which was pronounced in open Court and as we
have held that such order can be legally operative, it cannot be
said it was an act of deliberate misconduct on the part of the
petitioner as held by the Inquiring Authority.
We are of the view that the approval of such note
sheet by the petitioner can at best be termed as an error of
judgment, but certainly not „misconduct‟ when it is merely for
registration of a case for hearing of the matter by the Division
Bench of the Court and no party was going to be prejudiced or
harmed by such registration.
The term „misconduct‟ implies a wrongful intention,
and not a mere error of judgment resulting in doing of negligent
act. „Misconduct‟ means, misconduct arising from ill motive. An
act of negligence, errors of judgment, or innocent mistake, does
not constitute „misconduct‟.
In the case of J. Ahmed (supra), it is held as
follows:
"10. It would be appropriate at this stage to
ascertain what generally constitutes misconduct,
especially in the context of disciplinary
proceedings entailing penalty.
11. Code of conduct as set out in the Conduct
Rules clearly indicates the conduct expected of a
member of the service. It would follow that
conduct which is blameworthy for the
government servant in the context of Conduct
Rules would be misconduct. If a servant
conducts himself in a way inconsistent with due
and faithful discharge of his duty in service, it is
misconduct (see Pierce v. Foster : 17 QB 536,
542). A disregard of an essential condition of
the contract of service may constitute
misconduct [see Laws Vs. London Chronicle
(Indicator Newspapers : (1959) 1 WLR
698)]. This view was adopted in Shardaprasad
Onkarprasad Tiwari Vs. Divisional
Superintendent, Central Railway, Nagpur
Division, Nagpur : 61 Bom LR 1596 and
Satubha K. Vaghela Vs. Moosa Raza : 10
Guj LR 23. The High Court has noted the
definition of misconduct in Stroud's Judicial
Dictionary which runs as under:
"Misconduct means, misconduct arising
from ill motive; acts of negligence,
errors of judgment, or innocent
mistake, do not constitute such
misconduct."
In industrial jurisprudence amongst others,
habitual or gross negligence constitute
misconduct but in Utkal Machinery Ltd. Vs.
Workmen, Miss Shanti Patnaik : AIR 1966
SC 1051 in the absence of standing orders
governing the employee's undertaking,
unsatisfactory work was treated as misconduct
in the context of discharge being assailed as
punitive. In S. Govinda Menon Vs. Union of
India : AIR 1967 SC 1274, the manner in
which a member of the service discharged his
quasi judicial function disclosing abuse of power
was treated as constituting misconduct for
initiating disciplinary proceedings. A single act of
omission or error of judgment would ordinarily
not constitute misconduct though if such error
or omission results in serious or atrocious
consequences, the same may amount to
misconduct as was held by this Court in P.H.
Kalyani Vs. Air France, Calcutta : AIR 1963
SC 1756, wherein it was found that the two
mistakes committed by the employee while
checking the load-sheets and balance charts
would involve possible accident to the aircraft
and possible loss of human life and, therefore,
the negligence in work in the context of serious
consequences was treated as misconduct. It is,
however, difficult to believe that lack of
efficiency or attainment of highest standards in
discharge of duty attached to public office would
ipso facto constitute misconduct. There may be
negligence in performance of duty and a lapse in
performance of duty or error of judgment in
evaluating the developing situation may be
negligence in discharge of duty but would not
constitute misconduct unless the consequences
directly attributable to negligence would be such
as to be irreparable or the resultant damage
would be so heavy that the degree of culpability
would be very high. An error can be indicative of
negligence and the degree of culpability may
indicate the grossness of the negligence.
Carelessness can often be productive of more
harm than deliberate wickedness or
malevolence. Leaving aside the classic example
of the sentry who sleeps at his post and allows
the enemy to slip through, there are other more
familiar instances of which a railway cabinman
signals in a train on the same track where there
is a stationery train causing head-on collision; a
nurse giving intravenous injection which ought
to be given intramuscular causing instantaneous
death; a pilot overlooking an instrument
showing snag in engine and the aircraft crashes
causing heavy loss of life. Misplaced sympathy
can be a great evil (see Navinchandra
Shakerchand Shah Vs. Manager,
Ahmedabad Co-op. Department Stores Ltd.
: (1978) 19 Guj LR 108, 120). But in any
case, failure to attain the highest standard of
efficiency in performance of duty permitting an
inference of negligence would not constitute
misconduct nor for the purpose of Rule 3 of the
Conduct Rules as would indicate lack of devotion
to duty."
In the case of Insp. Prem Chand (supra), it is held
as follows:
"10. In State of Punjab v. Ram Singh, Ex-
Constable : (1992) 4 SCC 54, it was stated:
(SCC pp. 57-58, para 5)
"5. Misconduct has been defined in
Black‟s Law Dictionary, 6th Edn. at p.
999, thus:
„A transgression of some established
and definite rule of action, a forbidden
act, a dereliction from duty, unlawful
behavior, willful in character, improper
or wrong behavior; its synonyms are
misdemeanor, misdeed, misbehavior,
delinquency, impropriety,
mismanagement, offense, but not
negligence or carelessness.‟
Misconduct in office has been defined as:
„Any unlawful behavior by a public
officer in relation to the duties of his
office, willful in character. Term
embraces acts which the office-holder
had no right to perform, acts performed
improperly, and failure to act in the
face of an affirmative duty to act.‟
11. In R Ramanatha Aiyar's Law Lexicon, 3rd
Edn., at p. 3027, the term "misconduct" has
been defined as under:
"The term „misconduct‟ implies a
wrongful intention, and not a mere
error of judgment.
* * *
Misconduct is not necessarily the same
thing as conduct involving moral
turpitude.
The word „misconduct‟ is a relative
term, and has to be construed with
reference to the subject-matter and the
context wherein the term occurs,
having regard to the scope of the Act or
statute which is being construed.
„Misconduct‟ literally means wrong
conduct or improper conduct."
(See also Bharat Petroleum Corpn. Ltd. Vs.
T.K. Raju : (2006) 3 SCC 143)
12. It is not in dispute that a disciplinary
proceeding was initiated against the appellant in
terms of the provisions of the Delhi Police
(Punishment and Appeal) Rules, 1980. It was,
therefore, necessary for the disciplinary
authority to arrive at a finding of fact that the
appellant was guilty of an unlawful behaviour in
relation to discharge of his duties in service,
which was willful in character. No such finding
was arrived at. An error of judgment, as noticed
hereinbefore, per se is not a misconduct. A
negligence simpliciter also would not be a
misconduct. In Union of India Vs. J. Ahmed :
(1979) 2 SCC 286 whereupon Mr. Sharan
himself has placed reliance, this Court held so
stating: (SCC pp. 292-93, para 11)
"11. Code of conduct as set out in the
Conduct Rules clearly indicates the
conduct expected of a member of the
service. It would follow that conduct
which is blameworthy for the
government servant in the context of
Conduct Rules would be misconduct. If
a servant conducts himself in a way
inconsistent with due and faithful
discharge of his duty in service, it is
misconduct (see Pierce Vs. Foster :
(1886) 17 QBD 536). A disregard of
an essential condition of the contract of
service may constitute misconduct [see
Laws Vs. London Chronicle
(Indicator Newspapers) : (1959) 1
WLR 698]. This view was adopted in
Shardaprasad Onkarprasad Tiwari
Vs. Divisional Supdt., Central Rly.,
Nagpur Division, Nagpur : (1959)
61 Bom LR 1596 and Satubha K.
Vaghela Vs. Moosa Raza : 10 Guj LR
23. The High Court has noted the
definition of misconduct in Stroud‟s
Judicial Dictionary which runs as under:
„Misconduct means, misconduct arising
from ill motive; acts of negligence,
errors of judgment, or innocent
mistake, do not constitute such
misconduct‟."
(emphasis supplied)
In the case of Abhay Jain (supra), it is held as
follows:
"71. This Court in Krishna Prasad Verma Vs.
State of Bihar : (2019) 10 SCC 640, while
setting aside the High Court‟s order, quashed
the charges against the officer therein and
granted him consequential benefits while holding
that: (SCC pp. 643, 646 & 648, paras 4, 11 &
16)
"4. No doubt, there has to be zero
tolerance for corruption and if there are
allegations of corruption, misconduct or
of acts unbecoming of a judicial officer,
these must be dealt with strictly.
However, if wrong orders are passed,
that should not lead to disciplinary
action unless there is evidence that the
wrong orders have been passed for
extraneous reasons and not because of
the reasons on the file.
* * *
11. The main ground to hold the
appellant guilty of the first charge is
that the appellant did not take notice of
the orders of the High Court whereby
the High Court had rejected the bail
application of one of the accused vide
order dated 26.11.2001. It would be
pertinent to mention that the High
Court itself observed that after framing
of charges, if the non-official witnesses
are not examined, the prayer for bail
could be removed, but after moving the
lower court first. The officer may have
been guilty of negligence in the sense
that he did not carefully go through the
case and file and did not take notice of
the order of the High Court which was
on his file. This negligence cannot be
treated to be misconduct. It would be
pertinent to mention that the enquiry
officer has not found that there was
any extraneous reason for granting
bail. The enquiry officer virtually sat as
a court of appeal picking holes in the
order granting bail.
* * *
16. We would, however, like to make it
clear that we are in no manner
indicating that if a judicial officer
passes a wrong order, then no action is
to be taken. In case a judicial officer
passes orders which are against settled
legal norms but there is no allegation of
any extraneous influences leading to
the passing of such orders then the
appropriate action which the High Court
should take is to record such material
on the administrative side and place it
on the service record of the judicial
officer concerned. These matters can
be taken into consideration while
considering career progression of the
judicial officer concerned. Once note of
the wrong order is taken and they form
part of the service record these can be
taken into consideration to deny
selection grade, promotion, etc. and in
case there is a continuous flow of
wrong or illegal orders then the proper
action would be to compulsorily retire
the judicial officer, in accordance with
the Rules. We again reiterate that
unless there are clear-cut allegations of
misconduct, extraneous influences,
gratification of any kind, etc.,
disciplinary proceedings should not be
initiated merely on the basis that a
wrong order has been passed by the
judicial officer or merely on the ground
that the judicial order is incorrect."
(emphasis supplied)
* * *
73. In light of the above judicial
pronouncements, we hold that the appellant
may have been guilty of negligence in the sense
that he did not carefully go through the case file
and did not take notice of the order of the High
Court which was on his file. This negligence
cannot be treated to be misconduct. Moreover,
the enquiry officer virtually sat as a court of
appeal picking holes in the order granting bail,
even when he could not find any extraneous
reason for the grant of the bail order. Notably,
in the present case, there was not a string of
continuous illegal orders that have been alleged
to be passed for extraneous considerations. The
present case revolves only around a single bail
order, and that too was passed with competent
jurisdiction. As has been rightly held by this
Court in Sadhna Chaudhary : (2020) 11 SCC
760, mere suspicion cannot constitute
"misconduct". Any "probability" of misconduct
needs to be supported with oral or documentary
material, and this requirement has not been
fulfilled in the present case. These observations
assume importance in light of the specific fact
that there was no allegation of illegal
gratification against the present appellant. As
has been rightly held by this Court, such relief-
oriented judicial approaches cannot by
themselves be grounds to cast aspersions on the
honesty and integrity of an officer."
In the case of A.L. Kalra (supra), it is held as
follows:-
22. Rule 4 bears the heading „General‟. Rule 5
bears the heading „Misconduct‟. The draftsmen
of the 1975 Rules made a clear distinction about
what would constitute misconduct. A general
expectation of a certain decent behaviour in
respect of employees keeping in view
Corporation culture may be a moral or ethical
expectation. Failure to keep to such high
standard of moral, ethical or decorous behaviour
befitting an officer of the company by itself
cannot constitute misconduct unless the specific
conduct falls in any of the enumerated
misconduct in Rule 5. Any attempt to telescope
Rule 4 into Rule 5 must be looked upon with
apprehension because Rule 4 is vague and of a
general nature and what is unbecoming of a
public servant may vary with individuals and
expose employees to vagaries of subjective
evaluation. What in a given context would
constitute conduct unbecoming of a public
servant to be treated as misconduct would
expose a grey area not amenable to objective
evaluation. Where misconduct when proved
entails penal consequences, it is obligatory on
the employer to specify and if necessary define
it with precision and accuracy so that any ex
post facto interpretation of some incident may
not be camouflaged as misconduct. It is not
necessary to dilate on this point in view of a
recent decision of this Court in Glaxo
Laboratories (I) Ltd. Vs. Presiding Officer,
Labour Court, Meerut : (1984) 1 SCC 1
where this Court held that "everything which is
required to be prescribed has to be prescribed
with precision and no argument can be
entertained that something not prescribed can
yet be taken into account as varying what is
prescribed. In short, it cannot be left to the
vagaries of management to say ex post facto
that some acts of omission or commission
nowhere found to be enumerated in the relevant
standing order is nonetheless a misconduct not
strictly falling within the enumerated misconduct
in the relevant standing order but yet a
misconduct for the purpose of imposing a
penalty". Rule 4 styled as „General‟ specifies a
norm of behaviour but does not specify that its
violation will constitute misconduct. In Rule 5, it
is nowhere stated that anything violative of Rule
4 would be per se a misconduct in any of the
sub-clauses of Rule 5 which specifies
misconduct. It would therefore appear that even
if the facts alleged in two heads of charges are
accepted as wholly proved, yet that would not
constitute misconduct as prescribed in Rule 5
and no penalty can be imposed for such
conduct. It may as well be mentioned that Rule
25 which prescribes penalties specifically
provides that any of the penalties therein
mentioned can be imposed on an employee for
misconduct committed by him. Rule 4 does not
specify a misconduct."
In the case of Vijay Singh (supra), it is held as
follows:-
"14. The issue involved herein is required to be
examined from another angle also. Holding
departmental proceedings and recording a
finding of guilt against any delinquent and
imposing the punishment for the same is a
quasi-judicial function and not administrative
one. (Vide Bachhittar Singh Vs. State of
Punjab : AIR 1963 SC 395, Union of India
Vs. H.C. Goel : AIR 1964 SC 364, Mohd.
Yunus Khan Vs. State of U.P : (2010) 10
SCC 539 and Coal India Ltd. Vs. Ananta
Saha : (2011) 5 SCC 142)
* * *
20. Unfortunately, a too trivial matter had been
dragged disproportionately which has caused so
much problem to the appellant. There is nothing
on record to show as to whether the alleged
delinquency would fall within the ambit of
misconduct for which disciplinary proceedings
could be initiated. It is settled legal proposition
that (sic it cannot be left to) the vagaries of the
employer to say ex post facto that some acts of
omission or commission nowhere found to be
enumerated in the relevant rules is nonetheless
a misconduct."
16. An important aspect to be kept in mind is that the
order as was placed before the petitioner was valid in the eyes of
law being dictated in open Court and communicated through
proper channel and there was no scope for the petitioner at that
stage to see the order of the Court in distrust. There is no
allegation of any extraneous influences on the petitioner leading
him to approve the note sheet placed by Deputy Registrar
(Judicial). The petitioner has taken a specific stand that after the
order was placed before him, he sought instructions over phone
from the learned Senior Judge of the Division Bench regarding
the matter and then approved the note. The Inquiring Authority
has not disbelieved such stand taken by the petitioner rather
observed that the petitioner and Deputy Registrar (Judicial)
though thought it proper to discuss with the learned Senior
Judge of the Division Bench but did not feel it appropriate to
bring it to the kind notice of the Hon‟ble Chief Justice who came
to know all such facts from other source. It was further observed
by the Inquiring Authority that the actions taken on the part of
the petitioner in taking instructions and approving the note
keeping the Hon‟ble Chief Justice in dark was certainly deliberate
and amounting to administrative indiscipline, dereliction of duty
as well as gross misconduct.
We are of the humble view that even if the action
taken by the petitioner in approving the note sheet can be stated
to be an error but to err is human. Making mistakes is a natural
and expected part of being human and cannot be termed as
gross misconduct, when there is no violation of definite
Rule/Law/Procedure and there was nothing to gain by the
petitioner by putting his career at risk at the displeasure of the
Hon‟ble Chief Justice. In the case of Krishna Prasad Verma
(supra), it is held as follows:-
"3. Article 235 of the Constitution of India vests
control of the subordinate courts upon the High
Courts. The High Courts exercise disciplinary
powers over the subordinate courts. In a series
of judgments, this Court has held that the High
Courts are also the protectors and guardians of
the Judges falling within their administrative
control. Time and time again, this Court has laid
down the criteria on which actions should be
taken against judicial officers. Repeatedly, this
Court has cautioned the High Courts that action
should not be taken against judicial officers only
because wrong orders are passed. To err is
human and not one of us, who has held judicial
office, can claim that we have never passed a
wrong order."
Law is well settled that the acts of misconduct must
be precisely and specifically stated in rules or standing orders
and cannot be interpreted ex-post facto by the authority. We are
of the view that the manner in which the note sheet was placed
by Deputy Registrar (Judicial) before the petitioner, the action
taken by the petitioner seeking for instructions from the learned
Senior Judge of the Division Bench regarding the matter and
then approving the note cannot be said to be deliberate and
amounting to administrative indiscipline, dereliction of duty as
well as gross misconduct as held by the Inquiring Authority.
Law is well settled that the finding should not be
perverse or unreasonable, nor should the same be based on
conjectures and surmises. There is a distinction in „proof‟ and
„suspicion‟. The authority must record reasons for arriving at the
findings of fact in the context of the statute defining the
misconduct.
The Inquiring Authority has held that the guidelines
for functioning of each Officer of the Registry have been issued
from time to time prescribing their duties and despite all such
guidelines, the petitioner in the capacity of Registrar General, did
not think it proper to bring such unusual fact of initiation of Suo
Motu proceeding based upon a plain unsigned document to the
notice of the Hon‟ble Chief Justice. Admittedly, there are no such
guidelines to show that the order passed by a Bench in open
Court for initiation of Suo Motu proceeding is to be brought to
the notice of the Hon‟ble Chief Justice or it is to get approval of
the Hon‟ble Chief Justice before its registration in spite of the
order passed by a Bench.
The Inquiring Authority held that usually a Suo Motu
Writ proceeding is initiated by the order of the Chief Justice or a
Bench consisting of the Chief Justice as one of the members and
based its entire findings on such alleged „unusual fact‟ whereas
the facts on which the articles of charge based under Annexure-I
and the statement of imputation of misconduct under Annexure-
II of the Memorandum of Charges dated 9th November, 2021
even never remotely whispered about any such fact/allegation
and that such precedent has been violated by the delinquent
officer. Either in the Certified Standing Order or in the service
Regulations, an act or omission is to be prescribed as
misconduct. It is not open to the Authority to fish out some
conduct as misconduct and punish a delinquent even though the
alleged misconduct would not be comprehended in any of the
enumerated misconduct. The Hon‟ble Supreme Court in the case
of Rasaiklal Vaghajibhai Patel -Vrs.- Ahmedabad Municipal
Corporation and another reported in (1985) 2 Supreme
Court Cases 35 has held as follows:-
"4....It is thus well-settled that unless either in
the Certified Standing Order or in the service
regulations an act or omission is prescribed as
misconduct, it is not open to the employer to
fish out some conduct as misconduct and punish
the workman even though the alleged
misconduct would not be comprehended in any
of the enumerated misconducts."
It is the case of the petitioner that on good faith,
with an honest intention to comply the judicial order of the Court
as well as believing the officers of the Registry, he approved the
note sheet placed before him by the Deputy Registrar (Judicial)
of the Court. In a legal context, „good faith‟ generally means
acting honestly and fairly, without intent to deceive or defraud.
It implies a lack of malice or bad intent, and a willingness to
fulfill obligations and promises. Section 3(22) of the General
Clauses Act defines „good faith‟ as an act performed honestly,
regardless of whether it is done negligently or not. As per
Law.Com Legal Dictionary, the term „good faith‟ means honest
intent to act without taking an unfair advantage over another
person or to fulfill a promise to act, even when some legal
technicality is not fulfilled. The term is applied to all kinds of
transactions. In the popular sense, the phrase 'in good faith'
simply means "honestly, without fraud, collusion or deceit;
really, actually, without pretence and without intent to assist or
act in furtherance of a fraudulent or otherwise unlawful scheme".
(See: Words and Phrases, Permanent Edition, Vol. 18A, page
91).
Obedience of the orders of the Courts is foremost
and sacred for maintenance of rule of law. Disobedience of the
orders strikes at the very roots of rule of law and shakes the
foundation on which the judicial system rests. Tolerance to
disobedience is not in the interest of the judicial system because
it will lose the confidence of those who have succeeded in the
Courts. An order passed by a Court is sacrosanct and should be
implemented. Implementation of an order cannot be refused
under any pretext, so long as it remains in force and is not
eclipsed or set aside in the hierarchy of remedies.
It cannot be lost sight of the fact that the co-
delinquent Dr. Pabitra Mohan Samal, the then Registrar (Judicial)
I/C was exonerated though he was implicated basing on the
same incident and had a pivotal role to play. In fact, the
unsigned order was first received by him, who endorsed it to the
Deputy Registrar (Judicial) and he was exonerated on the plea
that he was in the charge of Registrar (Judicial) on that day only.
In that sense, the petitioner‟s case was dealt with tough hands
though he dealt with such type of the matter for the first time.
Whether the imposition of punishment is shockingly
disproportionate:
17. Mr. Budhadev Routray, learned Senior Advocate
urged that the imposition of punishment is shockingly
disproportionate, even past unblemished service record of the
petitioner was not considered. The learned Advocate General
also endorsed the submission made by the learned Senior
Counsel for the petitioner that in view of the past unblemished
service record of the petitioner, punishment imposed on him is
shockingly disproportionate.
In the case of Subash Chandra Panda (supra), it is
held as follows:-
"7....That apart the past service record of the
petitioner was not taken into consideration.
Therefore, the major punishment imposed on
the petitioner is shockingly disproportionate to
the charges proved and violative of the
principles of natural justice. On this ground the
impugned order of removal of the petitioner
from service is liable to be quashed."
Learned counsel for the petitioner argued that Sub-
Rule (vi) of Rule 13 of OCS (CCA) Rule, which only prescribed
penalty of reduction to a lower service, grade or post or to a
lower time scale or to a lower stage in a time scale and it does
not prescribe penalty i.e., reduction to a lower grade in initial
scale of pay. The penalty which is not prescribed could not be
granted and imposition of such penalty is against mandates of
law. He further argued that the awarded punishment that „the
upgradation to the next higher grade in the Super Time Scale will
be considered after five years is against the spirit of Rule 13 of
the O.C.S. (C.C.A) Rules, 1962 read with Rule 5 of the Odisha
Superior Judicial Service Rules, 2007 (as amended).
We are of the humble view that ordinarily a person in
service cannot be visited with a punishment not specified in the
contract of service or the law governing such service.
Punishments may be specified either in the contract of service or
in the Act or the Rules governing such service. While imposing
the punishment, the Disciplinary Authority cannot override the
provision as envisaged in Rule 5 of the Odisha Superior Judicial
Service Rules, 2007 (as amended) which mandates as to when
the upgradation to the higher time scale of super time scale shall
be considered.
In the case of State of Bihar and Anr. -Vs.- P.P.
Sharma, IAS and Anr. reported in 1992 Supp (1) SCC 222,
it is held that the administrative action must be said to be done
in good faith, if it is in fact done honestly, whether it is done
negligently or not. An act done honestly is deemed to have been
done in good faith. An administrative authority must, therefore,
act in a bona fide manner and should never act for an improper
motive or ulterior purposes or contrary to the requirements of
the statute, or the basis of the circumstances contemplated by
law, or improperly exercised discretion to achieve some ulterior
purpose.
We are of the view that the action of the petitioner
approving the note sheet placed by Deputy Registrar (Judicial)
for registration of Suo Motu proceeding as per the order passed
by the Division Bench in open Court, cannot be said to be gross
misconduct, dereliction of duty and administrative indiscipline
and the error of judgment or laches or inadvertent mistake, if
any on the part of the petitioner in the background of
surrounding circumstances which seems to have been done in
good faith and especially in the light of his past service record,
there is no escape from the conclusion that the punishment
imposed on the petitioner is grossly and shockingly
disproportionate.
Conclusion:
18. In view of the foregoing discussions, we are of the
humble view that the findings of the Inquiring Authority that
charges of gross misconduct, dereliction of duty and
administrative indiscipline are well established against the
petitioner, are perverse and untenable in the eyes of law and
therefore, the same are hereby set aside. The petitioner thus
stands exonerated of all the charges levelled against him. The
impugned notification no.2100 dated 21st December 2022 of this
Court under Annexure-22 and the consequential office order
no.6950 dated 16th February 2023 of the Govt. of Odisha, Home
Department under Annexure-23, stands quashed. Consequently,
the opposite parties nos.1 and 2 are directed to extend all the
service benefits attached to the post of a District Judge (Super
Time Scale) w.e.f. 21st December, 2022 to the petitioner
forthwith.
Accordingly, the writ petition is allowed. No costs.
.............................
(S. K. Sahoo, J.)
S. S. Mishra, J I agree.
.............................
(S. S. Mishra, J.)
Orissa High Court, Cuttack
The 2nd May 2025/RKM/SIPUN
