Malaya Ranjan Dash vs State Of Odisha And on 2 May, 2025

[Cites 23, Cited by 0]

Orissa High Court

Malaya Ranjan Dash vs State Of Odisha And on 2 May, 2025

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 Page 46 of 90 47 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: W.P.(C) No. 11802 of 2020

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 Page 47 of 90 48 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.

Page 48 of 90 49

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.

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.

Page 49 of 90 50 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 Page 50 of 90 51 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. Page 51 of 90 52 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 Page 52 of 90 53 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 Page 53 of 90 54 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 Page 54 of 90 55 "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. Page 55 of 90 56

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 Page 56 of 90 57 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 Page 57 of 90 58 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 Page 58 of 90 59 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 Page 59 of 90 60 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 Page 60 of 90 61 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 Page 61 of 90 62 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., Page 62 of 90 63 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. Page 63 of 90 64

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 Page 64 of 90 65 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 Page 65 of 90 66 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 Page 66 of 90 67 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 Page 67 of 90 68 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 Page 68 of 90 69 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 Page 69 of 90 70 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.‟ Page 70 of 90 71 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) Page 71 of 90 72

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 Page 72 of 90 73 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) Page 73 of 90 74 "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 Page 74 of 90 75 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 Page 75 of 90 76 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 Page 76 of 90 77 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 Page 77 of 90 78 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 Page 78 of 90 79 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 Page 79 of 90 80 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 Page 80 of 90 81 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 Page 81 of 90 82 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 Page 82 of 90 83 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 Page 83 of 90 84 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."

Page 84 of 90 85

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 Page 85 of 90 86 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 Page 86 of 90 87 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 Page 87 of 90 88 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 Page 88 of 90 89 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 Page 89 of 90 90 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




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