Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8509-8510 OF 2003

State of Orissa & Anr.   ……. Appellants

Vs.

Sangram Keshari Misra & Anr.   ….… Respondents

J U D G M E N T

                                                                                                        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.

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  

2

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  

3

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  

4

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  

5

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  

6

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  

7

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  

8

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)  

9