U/A 317 (1) Of The Constitution Of India vs R/O Dr.H.B.Mirdha,Chairman

Reference under Article 317(1) of the Constitution of India

In Re:

Under Article 317(1) of the Constitution of India for enquiry and report on the allegations against Dr. H.B. Mirdha, Chairman, Orissa Public Service Commission

JUDGMENT

J.M. Panchal, J.

1. This is a Reference under Article 317(1) of the

Constitution of India for enquiry and report on

the charges levelled against Dr. H.B. Mirdha, who

was Chairman of the Orissa Public Service

Commission.

2

2. The facts giving rise to the Reference are as

under:

Dr. H.B. Mirdha was appointed as Member of the

Orissa Public Service Commission (`OPSC' for short)

on April 3, 1998. Later on he took over as Chairman

of the OPSC on April 30, 1999. An advertisement

inviting applications for the Orissa Civil Services

Examination, 2000 was published in the newspapers

on November 6, 2000. The last date for receipt of the

applications was January 31, 2001. The Special

Secretary of the OPSC circulated a declaration to be

made by all the Members including the Chairman and

the employees as to whether any of their near

relations or persons they were interested in, were

appearing in the examination. The purpose was to

keep such members or the employees out of the

process of conducting examination in order to ensure

impartiality and fair play. Dr. Mirdha declared on

January 8, 2001 that none of his relatives was

appearing in the ensuing examination. Subsequent to

above declaration, two married daughters of Dr. 3 Mirdha applied on January 31, 2001 for undertaking

the ensuing examination. A meeting of the OPSC was

held on May 10, 2001. The Special Secretary placed a

proposal for condonation of certain deficiencies found

in some of the applications, which were received. The

Commission deliberated and decision in each case was

taken. However, no information regarding selection of

question papers for the preliminary examination was

given by the Chairman to other members of the

Commission. Again in the meeting held on May 30,

2001 several important points were discussed

regarding the modality to be adopted for the selection

of question papers for the preliminary examination as

well as declaration by the Members for the purpose of

maintaining secrecy and the declaration by the

Members and the employees regarding their close

relatives appearing in the examination. In this

meeting, Dr. Mirdha did not offer such declaration of

interest in respect of his close relatives who were to

appear in the forthcoming examination to be

conducted by the OPSC. The examination of the 4 records indicate that his two married daughters,

namely, Smt. Anuragini Mirdha and Smt. Sitarani

Mirdha had made applications on January 31, 2001

for undertaking the examination and that they had

withdrawn their applications on May 31, 2001 by

sending a fax message. In meeting held on June 2,

2001, Dr. Mirdha had divulged that his two married

daughters were candidates for examination but that

fact was not known to him and as his daughters had

withdrawn their candidature, there was no bar to his

involvement in the examination process. Mr. Sarkar,

Member of the Commission, had pointed out that

withdrawal of candidature by his daughters did not

make any difference and the fact remained that as

Chairman, Dr. Mirdha had involved himself with the

process of selecting question papers while his

daughters were candidates. Mr. Mohanty, Member of

the Commission endorsed Mr. Sarkar's view and

added that it was impossible to believe that Dr.

Mirdha was not aware of his daughters' candidature.

It is alleged that these remarks infuriated Dr. Mirdha, 5 who shouted at both the Members in an uncivilized

manner. It was further alleged that on June 5, 2001,

Dr. Mirdha had telephoned Dr. (Mrs.) Ray at her

residence and exerted pressure on her to agree to his

note on issuance of admission cards but Dr. (Mrs.)

Ray had refused to oblige him and, therefore, on June

7, 2001, Dr. Mirdha had used vulgar and vituperative

language and threatened to launch tirade against the

three Members of the Commission. Levelling above

mentioned allegations, the three members had

addressed representation dated June 11, 2001 to His

Excellency the Governor of Orissa with a request to

take action against Dr. Mirdha. The Commission was

kept in dark regarding the procedure to be adopted by

the Chairman to settle question papers and to make a

final selection.

3. Dr. Mirdha, while holding the Office of Member

and Chairman of the OPSC, which is a full time

Office, was supposed to maintain utter devotion

and sincerity to the Office. It was alleged that an

infraction of law and breach of constitutional 6 duty was committed by him by associating

himself illegally with a private coaching centre at

Sambalpur known as OAS Coaching Centre,

which functioned as a private high school known

as Budharaja High School at Ainthapalli in

Sambalpur Town. According to the allegations a

retired IAS Officer Mr. Purna Chandra Padhi was

engaged by Dr. Mirdha and the said Centre

thrived because of its connection with Dr.

Mirdha. What was alleged was that it was

planned to accommodate the candidates

belonging to the aforesaid coaching centre in the

examinations to be conducted by the OPSC.

4. Further, a complaint was submitted by Ms.

Pranati Patro on October 27, 2000 against Dr.

Mirdha on a serious charge of bribery. According

to the said complaint, the complainant had

appeared along with 37 students for being

selected to two posts that were advertised on

January 26, 1999 in the subject of Home

Science. Out of 37 students, 10 students were 7 selected for interview on the basis of written test,

in which, according to the complainant, she had

secured the highest marks. Ms. Patro was

interviewed by the Board consisting of Dr.

Mirdha and others. The interview was held on

June 12, 2000 in which Ms. Ajanta Nayak had

been selected despite her having secured the

lowest marks in the written test. It was alleged

that the marks awarded in the interview to Ms.

Patro, who had secured maximum marks in the

written test, were intentionally reduced at the

behest of Dr. Mirdha for which, according to Ms.

Patro, Dr. Mirdha had received a sum of Rs.1.5

lacs for favouring Ms. Ajanta Nayak to select her

as a Junior Lecturer in Home Science.

5. Keeping in view the above allegations made by

Ms. Patro, a reference was made by the State

Government to the Lokpal, Orissa. The Lokpal in

his order dated February 5, 2002 observed that

in view of the provisions of Section 21 of the

Orissa Lokpal and Lokayuktas Act, 1985, the 8 Lokpal was not authorized to investigate into the

actions taken by Chairman or a Member of the

OPSC.

6. On the basis of the representation received, the

Governor of Orissa made an initial reference to

the State Government to take appropriate action.

After preliminary enquiry, the State Government,

at the level of the Chief Minister, requested the

Governor to recommend to His Excellency the

President of India to make reference to the

Supreme Court under Article 317(1) of the

Constitution. The Governor requested the State

Government to obtain legal opinion on the

question whether on the available material a

prima facie case was made out against the

Chairman for action under Article 317(1) of the

Constitution. The State Government obtained

the opinion of the Advocate General and the Law

Secretary. They opined that there existed a

prima facie case for initiating action against the

Chairman of the OPSC under Article 317(1) of the 9 Constitution. Therefore, the State Government

reiterated its earlier request for action under

Article 317(1) of the Constitution. The Governor

was of the opinion that it was incumbent upon

the Chairman of a State Public Service

Commission to maintain an image, dignity,

impartiality and integrity and that the conduct of

Dr. Mirdha prima facie showed failure to

maintain absolute integrity and dignity. The

Governor, therefore, by letter dated August 23,

2001, recommended to the Hon'ble the President

to make a reference to the Supreme Court under

Article 317(1) of the Constitution for necessary

enquiry into the allegations made against the

Chairman.

7. The Hon'ble President took into consideration the

letter dated August 23, 2001, addressed by the

Governor of Orissa to him, as well as reply of Dr.

Mirdha obtained by Governor of Orissa and other

materials. The Hon'ble the President was

satisfied from the material placed before him that 10 a prima facie case was made out for enquiry into

the first two charges in the complaint made by

the Members of the Commission and the charge

levelled in the petition filed by Ms. Patro against

the Chairman of the Commission. Therefore, in

exercise of the powers conferred upon him by

Clause (1) of Article 317 of the Constitution the

Hon'ble the President referred to the Supreme

Court of India for enquiry and report as to

whether Dr. Mirdha, Chairman, OPSC ought, on

the grounds of misbehaviour, to be removed from

the Office of Chairman of the Commission. The

Reference received was registered as Reference

No. 1 of 2003 under Article 317(1) of the

Constitution and notices were issued to the

interested parties.

8. The learned counsel for Dr. Mirdha had raised

three preliminary objections to the

maintainability of the Reference. Briefly stated

they were (i) no hearing or opportunity of

showing cause was given to him by the President 11 before making the Reference and, therefore, the

Reference should be rejected, (ii) the Reference

was vague, and (iii) assuming the facts stated in

the Reference to be correct, yet a case for

proceeding ahead against him within the

meaning of sub-Article (1) of Article 317 of the

Constitution was not made out.

9. After hearing the learned counsel for the parties

this Court, by an order dated March 29, 2005,

expressed the opinion that no hearing or

opportunity of showing cause against the

proposed Reference under Article 317(1) of the

Constitution was necessary before making the

Reference. In view of this opinion the first

objection raised by Dr. Mirdha was overruled.

The Court had perused the contents of the

Reference and the accompanying documents.

The Court noticed that the Reference referred to

the complaints annexed with Reference

wherefrom the facts, constituting the ground of

alleged "misbehaviour" within the meaning of 12 Article 317(1) of the Constitution, were clearly

stated. The Court, therefore, overruled second

preliminary objection that the Reference was

vague. As far as third preliminary objection was

concerned, the Court had directed the learned

Additional Solicitor General to file a statement

setting out the charges and the facts forming

basis thereof, which might need to be inquired

into consistently with the procedure laid down by

this Court in the matter of Reference under

Article 317(1) of the Constitution Special

Reference No. 1 of 1983 decided on August 17,

1983 and reported in (1983) 4 SCC 258. In

accordance with the direction of the Court, the

statements of allegations and statement of

charges were filed.

10. In order dated July 14, 2006 it was observed by

this Court that the Reference relates to three

charges. The OPSC had prayed to grant eight

weeks' time to file the list of witnesses and the

affidavits of the witnesses along with documents 13 by which the charges were said to be proved

against Dr. Mirdha. The said request was

granted by the Court. It was further observed in

the order that on filing of the list of witnesses

etc., further directions in respect of nominating a

Judge to record the cross-examination of the

witnesses, if sought for by Dr. Mirdha, would be

issued as also the place of recording the

evidence. Dr. Mirdha was also given liberty to file

within eight weeks a list of witnesses and

affidavits along with documents in defence of the

charges. Accordingly affidavits and reply

affidavits have been filed. It was agreed by the

learned counsel for the parties that the Reference

should be decided on the basis of the affidavits

filed by the parties.

11. This Court has heard the learned counsel for the

parties at length and in great detail. This Court

has also perused the affidavits, reply affidavits

and documents produced along with those

affidavits.

14

12. From the record of the case it is evident that Dr.

Mirdha was appointed as Chairman of the

Commission on April 30, 1999. This was not

liked by Dr. (Ms.) Prativa Ray, who herself

wanted to be the Chairman of the Commission

and, therefore, started behaving in a manner to

defy the authority of the Chairman. The

atmosphere of the Commission was absolutely

vitiated and the Members of the Commission had

approached the press hitting at the Chairman

and criticizing the functioning of the Commission

under his leadership on number of occasions.

The advertisement for conducting Orissa Civil

Services Examination was approved by the

Commission on November 6, 2000. In fact there

is no rule and/or order requiring that the

Chairman or the Members of the Commission

and employees should give a declaration as to

whether their near relatives are appearing in the

examination. There can be no doubt that if a

selection committee is constituted for the 15 purpose of selecting candidates on merits and

one of the members of the selection committee is

closely related to a candidate appearing for the

selection, it would not be enough for such

Member merely to withdraw from the

participation in the interview of the candidate

related to him but he must withdraw altogether

from the entire selection process and ask the

authorities to nominate another person in his

place on the selection committee so that the

selections made are not vitiated on account of

reasonable likelihood of bias. In the meeting

dated November 20, 2000 it was decided with the

approval of Dr. Mirdha as Chairman of the

Commission that the Chairman, Members and

the staff of the Commission should give

declaration as to whether his near relation was a

candidate for the examination. The record

further shows that on January 8, 2001 Dr.

Mirdha submitted his declaration that his two

unmarried daughters, who were staying with 16 him, were not appearing in the Orissa Civil

Services Examination. Subsequent to above

mentioned declaration, two married daughters of

Dr. Mirdha applied on January 31, 2001 for

undertaking the examination. On January 22,

2001 Mr. H.S. Sarkar, a Member of the OPSC

signed a declaration stating that none of his

relatives nor any person in whom he was

interested was the applicant in the ensuing

recruitment. Dr. (Ms.) Prativa Ray did not sign

the declaration until June 7, 2001. On June 11,

2001 she made a declaration that one of her

relations was appearing in the OPSC

examination. In view of the declaration made by

Dr. (Ms.) Ray Mr. H.S. Sarkar was made Incharge

to conduct the preliminary examination. The last

date for receipt of the applications for Orissa Civil

Services Examination was January 31, 2001. In

the meeting held on May 10, 2001 the

Commission unanimously resolved to hold the

examination on July 8, 2001. It may be 17 mentioned that in all 51852 applications were

received, out of which 1968 defective applications

were rejected. On May 31, 2001, the two married

daughters of Dr. Mirdha, who were applicants,

sent a fax message withdrawing their

applications. On June 1, 2001 Dr. Mirdha

submitted his declaration stating that none of his

near relations nor any person in whom he was

interested was an applicant for the ensuing

examination. The matter relating to the issue of

admission certificates to the candidates and the

number of applications to be rejected was placed

before the Commission in its meeting held on

June 2, 2001. As per the affidavit filed by Mr.

Sarkar, in this meeting Dr. Mirdha informed that

his two married daughters were candidates for

the examination but that fact was not known to

him and as they had withdrawn their

candidature, there was no bar to his involvement

in the examination process. According to Mr.

Sarkar this stand of Dr. Mirdha was objected to 18 by him. The issue of admission certificates was a

routine work of the Commission. But Mr. R.C.

Mohanty and Mr. H.S. Sarkar, who were present

in the meeting, did not cooperate and did not

sign the proposal for issue of admission

certificates. Since the arrangements in

consultation with coordinators, i.e., concerned

Collectors, Additional District Magistrates and

sub-Collectors were to be made for holding

examination, it was decided on June 4, 2001 to

discuss the matter with the Chief Secretary to

avoid deadlock that had taken place due to non-

cooperation of the Members of the OPSC.

Ultimately Dr. Mirdha passed an order on June

5, 2001 to issue admission certificates to the

candidates. The record shows that the three

Members of the Commission requested the

Chairman to fix up a date for discussion

regarding preliminary examination. The

Members took the stand that the examination

process was vitiated in view of the fact that two 19 married daughters of the Chairman were

candidates and that withdrawal of candidature

by the daughters had no effect and, therefore,

date earlier fixed for holding examination should

be postponed. What is relevant to notice is that

on June 7, 2001 Dr. (Ms.) Prativa Ray submitted

a declaration that none of her relatives was

appearing in the examination but on June 11,

2001 she submitted another declaration stating

that one of her relatives was appearing in the

examination.

13. The principle, which requires that a Member of a

Selection Committee, whose close relative is

appearing for selection, should decline to become

a Member of the Selection Committee or

withdraw from it leaving it to the appointing

authority to nominate another person in his

place need not be applied in case of a

constitutional authority like the Public Service

Commission, whether Central or State. If a

Chairman or Member of Public Service 20 Commission were to withdraw altogether from

the selection process on the ground that a close

relative of his is appearing for selection, no other

person save a Chairman and/or a Member can

be substituted in his place. And it may

sometimes happen that no other Member is

available to take the place of such Chairman or

Member and the functioning of the Public Service

Commission may be affected. Here in this case

the married daughters of Dr. Mirdha had

withdrawn their candidature before the

examinations were held. They had neither

appeared in the examination nor Dr. Mirdha had

taken any step in selecting any of his two

daughters for the Orissa Civil Services. None of

the close relative of Dr. Mirdha had appeared for

interview and, therefore, no occasion arose for

Dr. Mirdha to withdraw from participation in the

interview, etc. As noticed earlier Dr. (Ms.) Prativa

Ray had submitted a declaration on June 7,

2001 stating that none of her near relative was 21 appearing in the examination, but within few

days, i.e., on June 11, 2001 she had submitted

another declaration stating that one of her

relatives was appearing in the examination. It is

strange that no reference had been made under

Article 317(1) of the Constitution against Dr.

(Ms.) Prativa Ray though on the same ground

Reference is made against the Chairman to this

Court. It has also come on record that the Law

Department of the State Government opined to

refer the matter, under Article 317(1) of the

Constitution against remaining Members of the

OPSC for their acts of insubordination, non-

cooperation, etc. amounting to misbehaviour on

their part, but no Reference is made to this Court

against remaining Members of the OPSC. Article

317, like Article 124(4) does not define

misbehaviour or enumerate what acts would

constitute misbehaviour except that Clause (4) of

Article 317 makes an improvement in specifying

misbehaviour, namely, being interested in any 22 government contract. Outside Clause (4), it is

left to the Supreme Court to determine whether

any particular act or conduct is of such a nature

as to warrant the removal of the Chairman or

Member on the ground of `misbehaviour'.

Ordinarily bribery, corruption and the like

should be regarded as such `misbehaviour'. But

there is no limitation prescribed by the

Constitution itself. In Madan Lal vs. State of J &

K [(1995) 3 SCC 486], petition was filed to

challenge the process of selection of Munsifs

undertaken by J & K Public Service Commission.

One of the grounds urged was that the

respondent No. 13 being daughter of the

Chairman of the Commission and daughter-in-

law of another Member thereof, was given a

special favourable treatment by unduly inflating

her marks in viva voce test so that anyhow she

would get selected for post of Munsif and hence

her selection was bad in law. It was found that

the Chairman and the Member had disassociated 23 themselves from the selection process as

respondent No. 13 was competing. It was argued

by the learned counsel for the petitioners that

relatives of the Members simpliciter were not

disqualified from applying for the post advertised.

The plea that other Members, who were

bureaucrats and would be having liking and soft

corner for each other, did not find favour with

this Court and ultimately the said plea was

rejected. In Article 124 (4) `misbehaviour' means

wrong conduct or improper conduct. It 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 the Statute

under consideration. Every act or conduct or

error of judgment or negligence by a

constitutional authority per se does not amount

to misbehaviour. Misconduct implies a creation

of some degree of mens rea by the doer. Willful

abuse of constitutional office, willful misconduct

in the office, corruption, lack of integrity or any 24 other offence involving moral turpitude would be

misbehaviour. Judicial finding of guilt of grave

crime is misconduct. Persistent failure to

perform duties or willful abuse of the office would

be misbehaviour. On the facts and in the

circumstances of the case this Court is of the

opinion that charge No. 1 that Dr. Mirdha, who

was Chairman of the OPSC, committed

misbehaviour by not informing that his two

married daughters were to appear in the

examination is not proved.

14. As far as the second charge is concerned this

Court finds that on June 12, 2001 it was

intimated that the meeting of the Commission

would take place on June 14, 2001 for

discussion and disposal of various cases relating

to promotion etc. and the agenda was circulated.

On June 13, 2001 Dr. (Ms.) Prativa Ray alleged

that the Chairman had threatened her with life

and also threatened other Members of the

Commission on many occasions in Commission's 25 meetings. It was also alleged that on June 7,

2001 the Chairman had misbehaved with her

and threatened to launch a tirade against the

three Members of the Commission. On June 14,

2001 Dr. (Ms.) Ray had also filed a complaint

with the police and given the same a wide

publicity in the newspapers. On June 14, 2001

the Chairman fell ill and, therefore, the meeting

had to be cancelled. The intimation indicating

cancellation of the meeting was circulated

amongst the Members of the Commission.

However, the Members preferred to hold the

meeting in the absence of the Chairman and

discussed the matters which were not forming

part of the agenda and decided that the

examination be postponed to a later date as,

according to them, the examination process had

vitiated. The three Members of the Commission

thereafter requested the Chairman on June 18,

2001 to hold an emergent meeting on June 19,

2001. The said meeting was conducted under 26 the Chairmanship of Dr. Mirdha. The Chairman

did not agree to postponement of the

examination because postponement would have

resulted into huge loss to the Commission.

However, the Members with a majority decision

decided to postpone the date and also decided to

give wide publicity through media. On

September 19, 2001 there was no agenda for

discussion regarding OCS (Main) examination in

the Commission's meeting. However, Mr. Sarkar

brought one page note sheet mentioning that

"discussed. Dr. (Ms.) Prativa Ray, will remain

incharge of OCS Examination 2000 (Main)",

which was signed by two other Members also.

The Chairman did not agree with the said

proposal and gave his note of dissent. The

matter was not discussed as an approved agenda

in the Commission's meeting. The police

investigated into the complaint of Dr. (Ms.) Ray

regarding threatening phone call made by Dr.

Mirdha on June 7, 2001 and submitted the final 27 report stating that the case was closed for want

of evidence. The record further shows that the

final report of the police was accepted by the

learned Magistrate and Dr. (Ms.) Prativa Ray did

not file the protest petition. The proceedings of

different meetings of the Commission would

indicate that Dr. Mirdha had not acted in a

manner so as to compromise the image, the

dignity and the impartiality of the OPSC.

Therefore, the said allegation does not stand

proved. Further no credible evidence could be

adduced before this Court that Dr. Mirdha, who

was then Chairman of the OPSC, had been

associated with a private coaching centre at

Sambalpur known as OAS Coaching Centre

providing classes in respect of the examination

being conducted by the OPSC, even while holding

the Office of Member/Chairman of the OPSC.

Therefore, it is difficult to hold that Charge No. 2

levelled against Dr. Mirdha is proved. 28

15. As far as Charge No. 3 is concerned it was

alleged that Dr. Mirdha as Chairman, OPSC, had

received Rs.1.5 lacs to favour one Ms. Ajanta

Nayak to get her selected as Junior Lecturer in

Home Science for a post advertised on January

26, 1999 in respect of which written examination

was held on March 5, 2000 and the oral

interview was held on June 12, 2000. What was

alleged was that Ms. Ajanta Nayak was selected

despite she having secured the lowest marks in

the written test whereas the marks awarded to

Ms. Patro, at oral interview, who had secured the

maximum marks in the written test, were

intentionally reduced at the behest of Dr. Mirdha.

It is relevant to notice that charge of bribery was

levelled by Ms. Patro after about six months by

writing a letter to the Chief Minister. According

to her, she was informed by Ms. Ratna Sahu,

who was one of the experts in the subject, that

she was given a pencil in place of a pen to allot

marks and that when she came down steps after 29 the interview she found some people discussing

that a bribe of Rs.1.5 lacs was paid by Ms. Ajanta

Nayak to the Chairman. It is an admitted fact

that the Lokpal had recorded the statement of

two witnesses, i.e., Ms. Ratna Sahu and Ms.

Adarmani Baral, whose niece had appeared in

the interview. The Lokpal did not administer the

oath nor got the statements verified. As per the

statement when Smt. Adarmani Baral was sitting

in the waiting room, there was a discussion

regarding bribe having been paid to the

Chairman. The Chairman had replied that in the

written test conducted, Ms. Pranati Patro had

secured 102 marks whereas Ms. Ajanta Nayak

had secured 126 marks. It was also mentioned

by him that one Susmita Bahera had secured

116 marks and Smt. Bharti Nayak had secured

114 marks. What was stated by the Chairman

was that Viva Voce test of 20 marks was held

wherein Ms. Patro and Smt. Bharti Nayak

secured 14 marks each whereas Ms. Ajanta 30 Nayak secured 18 marks and Smt. Susmita

Bahera had secured 20 marks and, therefore,

even if said Ms. Patro had got 20 marks in the

viva voce test, she would not have been selected.

Having perused the record of the case this Court

finds that even on preponderance of probability

the charge that the Chairman had accepted a

sum of Rs.1.5 lacs as bribery for favouring Ms.

Ajanta Nayak is not established. In absence of

cogent and reliable evidence this Court finds that

Charge No. 3 levelled against the Chairman of

the OPSC is not proved.

16. The net discussion made above indicates that

none of the charges levelled against Dr. Mirdha

stand proved. The Reference is, therefore,

decided in favour of Dr. Mirdha and answered in

negative.

17. The Reference accordingly stands disposed of.

...................................CJI 31 [K.G. Balakrishnan]

.....................................J. [P. Sathasivam]

.....................................J. [J.M. Panchal] New Delhi;

November 10, 2008.