State Of Orissa & Anr vs Sangram Keshari Misra & Anr

State of Orissa & Anr. ....... Appellants

Vs.

Sangram Keshari Misra & Anr. ....... Respondents

JUDGMENT

R. V. RAVEENDRAN J.

In the year 2002 the first respondent, an officer belonging to IAS

cadre, was working as a Special Secretary, Planning and Coordination

Department, Government of Orissa. The State Government issued a charge

memorandum dated 29.4.2002 charging him as follows :

"Hon'ble High Court of Orissa, Cuttack in their order dated 17.1.2002 in Misc. case No.238 of 2001 (arising out of original criminal Misc. Case No.578 of 2000 - P.K. Sahoo vs. S.M. Patnaik & Ors.) have been pleased to dispose of the matter with regard to stay with a direction to the State Government in G.A. Department to file counter before the Hon'ble CAT, Cuttack. Sri Debasis Das, Addl. Government Advocate was to supply the free copy of the said order dated 17.1.2002 to G.A. Department for compliance of the orders of Hon'ble court.

2 On 22.1.2002 Sri Sangram Keshari Mishra, IAS, Special Secretary to Government, P & C Department contacted Sri Debasis Das, Additional Govt. Advocate over phone impersonating himself as Special Secretary to Government, G.A. Department and requested to supply of the order dated 17.1.2002 to him. Sri Das requested Sri Mishra to come over to his office at 10.30 a.m. to receive the order. Accordingly, Sri Mishra reached his office and Sri Das handed over the said order to Shri Mishra.

The order is neither related to P & C Department where Sri Mishra works nor Sri Mishra felt it necessary to send the order to G.A. Department after receipt of the same from Sri Debasis Das. The post of the Special Secretary, G.A. Department remained vacant during the period from 11.1.2002 to 6.2.2002. During such period Sri Mishra has shown grave misconduct by posing and impersonating himself as Special Secretary to Government, G.A. Department over phone to the Addl. Govt. Advocate and while appearing before him in person. He has obtained the said order dated 17.1.2002 from the Addl. Government Advocate in an illegal and unfair manner posing himself as Special Secretary, G.A. department with malafide intention. He has thus violated the provisions under Rule 3 of ASI (Conduct) Rules, 1968."

(emphasis supplied)

The first respondent challenged the said charge memorandum in

Original Application No. 336/2002 on the file of the Central Administrative

Tribunal, Cuttack. The Tribunal issued notice regarding admission on

21.5.2002 but did not grant interim relief sought for. The first respondent

filed a writ petition in the High Court of Orissa on 7.6.2002 (OJC No.

6001/2002) for declaring the charge memorandum dated 29.4.2002 to be 3

void and for an interim direction not to proceed in pursuance of the said

charge memorandum, pending disposal of his application before the

Tribunal and the writ petition before the High Court. On 12.6.2002 the High

Court issued notice in regard to the said writ petition and stayed the enquiry

in pursuance of the charge memorandum dated 29.4.2002. When the said

interim stay was in operation, Government of Orissa issued a corrigendum

dated 22.6.2002 to the charge memorandum dated 29.4.2002, amending the

words "Misc.Case No.238 of 2001 "wherever it appears by the words "Misc.

Case No. 236 of 2001".

3. The first respondent initiated contempt proceedings (Contempt

Petition No.62/2002) alleging that issue of the corrigendum dated 22.6.2002

when there was interim stay of the enquiry in pursuance of the charge

memorandum dated 29.4.2002 amounted to violation of the interim order

and interference with the administration of justice.

4. The High Court heard the writ petition and the contempt petition filed

by the first respondent and disposed them by orders dated 6.12.2002. By the

order disposing the writ petition, the charge memorandum dated 29.4.2002

and corrigendum dated 26.2.2002 were quashed with an observation that as a

consequence OA No. 336 of 2002 pending before the Tribunal also stood 4

disposed of with a direction to Tribunal to close the said O.A. The contempt

petition was disposed of by closing the contempt proceedings with the

following observations:

"In the face of the stay order granted by this court, any step taken in the disciplinary proceedings, is calculated to obstruction of administration of justice. The very fact that the opposite parties have not sought leave of this court before issuing the corrigendum indicates that they have themselves that the order of stay granted by this court is of no consequence. Issuance of corrigendum in the face of the stay order is obviously intended to frustrate or prejudice the result of the writ petition pending in this court. The stand taken by the opposite parties that the corrigendum is nothing but correction of an error and it was issued bonafide is not acceptable in as much as, the officials, who filed cause are Senior officers, of the state government and we are not prepared to accept that they do not know the consequences of the stay order. We strongly disapprove their action and warn that in future they will not venture to do any thing which may have the tendency to interfere with the administration of justice."

(emphasis supplied)

The said orders dated 6.12.2002 are challenged by the State of Orissa in

these appeals by special leave.

5. On 27.10.2003 this court granted leave after condoning the delay and

made an interim order permitting the State to pursue the disciplinary

proceedings initiated against the first respondent subject however to the

condition that the orders, if any, passed will not be communicated until

further orders of this Court. By further order dated 13.2.2004, it was 5

clarified that the disciplinary proceedings shall not stand in the way of the

promotion of first respondent due to him and any promotion granted will be

subject to the result of these appeals. Inspite of the liberty reserved to

proceed with the enquiry, till now the enquiry has not been commenced. We

are told that a new Enquiry officer (Dr. Aurobindo Behera, IAS, Principal

Secretary to Govt. of Orissa) has been appointed. The appellant who has

been serving as Officer on Special duty in the Board of Revenue has recently

been promoted to the rank of Principal Secretary to the Government of

Orissa. Be that as it may.

6. Two questions arise for our consideration in these appeals are :

(i) Whether the High Court was justified in quashing the charge

memorandum and corrigendum thereto;

(ii) Whether the High Court was justified in making adverse remarks

against the officers of the State Government in regard to issuance of

corrigendum.

Re: Point No. 1 7. The High Court has held that the charges are to be framed by the

disciplinary authority after applying its mind to the actual facts. Charge 6

memorandum has been issued alleging that the first respondent

impersonated himself as Special Secretary to the Government, General

Administration Department and went to the office of the Additional Govt.

Counsel (Mr. Debasis Das) and received the copy of the order dated

17.1.2002 in Misc. Case No.238/2001. Before the High Court it was

conceded that the first respondent did not receive the copy of any order in

Misc. Case No. 238/2001 and infact there was no such proceedings and

secondly the corrigendum dated 22.6.2002 was issued ignoring the fact that

there was stay of all further proceedings in regard to the enquiry and the

corrigendum could not have been issued in regard to charge memorandum

without the leave of the court. The logic of the reasoning of the High Court

was that if the corrigendum dated 22.6.2002 had to be ignored as it was

issued in violation of the interim order of stay dated 12.6.2002, the charge

dated 29.4.2002 would be false and incorrect as admittedly the first

respondent did not receive the copy of the order in Misc. case No.238/2001,

as there was no proceedings with the number "Misc. case No. 238/2001";

that consequently the charge obviously had no leg to stand; and the charge

memorandum was ex facie erroneous and baseless and was liable to be

interfered with. The High Court while so quashing the charge memorandum

dated 29.4.2002 and the corrigendum dated 22.6.2002 reserved liberty to the 7

Government to deal with the matter in accordance with the law thereby

meaning that the Government can issue a proper charge memorandum in

accordance with law, if it so desires.

8. We are of the view that in the peculiar factual background, it cannot

be said that the order of the High Court quashing the charge memorandum

and the corrigendum reserving liberty to Government to take action in

accordance with law, calls for interference in exercise of jurisdiction under

Article 136 of the Constitution.

9. The learned counsel for first respondent would further argue that the

charge memorandum ought to have been quashed not only on a technical

ground but even on merits without reserving any liberty to the State

Government to proceed in accordance with law. He submitted that the

following circumstances would make it clear that the said charge

memorandum was mala fide and issued with ulterior motive to affect his

career as a senior IAS officer: (a) The copy of the High Court order could be

obtained by applying for a certified copy, and there was no need for any one,

much less for him, to impersonate any one else to get a certified copy, (b) It

is difficult to believe that an officer of a rank of Special Secretary would

personally go to the office of an Additional Govt. Advocate just to receive a 8

certified copy; (c) The first respondent was in no way concerned with either

Misc. Case No. 238 of 2001 or Misc. Case No.236/2001 on the file of the

High Court and he had nothing to do with the order dated 17.1.2002 therein.

Receiving a free copy of the said order would not in any way benefit him or

adversely affect anyone else; (d) The charge against him is so absurd and

preposterous that it is liable to be rejected outright, and (e) The background

facts would disclose the hand of one P.K. Nayak, IAS, who is inimically

disposed towards the first respondent. Though there appears to be some

merit in the said contentions of the first respondent, it is unnecessary to

examine the correctness of these contentions as normally a charge sheet is

not quashed prior to the conducting of the enquiry on the ground that the

facts stated in the charge are erroneous. It is well settled that the correctness

or truth of the charge is the function of the disciplinary authority. (vide

Union of India vs. Upendra Singh - 1994(3) SCC page 357). Therefore we

reject the contention that the charge to have been quashed without reserving

to the State to proceed in accordance with law.

Re : Point No. 2

10. The High Court has held that issue of a corrigendum without the leave

of the court, when there was a stay of the enquiry in pursuance of the charge,

was clearly a step taken in the disciplinary enquiry. Even if it was correction 9

of a genuine error, it would still be technically a violation of the order of

interim stay. However, we accept the explanation given by the appellant that

the corrigendum was issued under a bona fide impression that correction of a

typographical error in the charge memorandum could be issued when there

was an order of interim stay, and therefore there was no intention to violate

the interim stay. Consequently we hold that the High Court was justified in

closing the contempt proceedings. But the High Court was not justified in

expressing disapproval and issuing a warning to the senior officers of the

State Government. We therefore delete the later half of para 7 of the

impugned order (shown in italics in Para 4 above).

11. In view of the above, we dismiss Civil Appeal No. 8509/2003 as

interference with the order dated 6.12.2002 in OJC No. 6001/2002 is not

warranted. We allow Civil Appeal No.8510/2003 in part by deleting the

adverse remarks against the senior officers of the State (as per earlier para).

..................................J. (R V Raveendran)

New Delhi; ................................J. October 19, 2010. (H.L. Gokhale)