# BARADAKANTA MISHRA v. THE REGISTRAR OF ORISSA ffiGH COURT & ANR

- **Citation:** [1974] 2 S.C.R. 282
- **Court:** Supreme Court of India
- **Decided:** 1973-11-19
- **Bench:** A. N. llAY, D. G. Palekar, Y. V. Chandrachud, P. N. Bhagwat!, V. R. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baradakanta-mishra-v-the-registrar-of-orissa-ffigh-court-anr-6138
- **Pages:** 39

## Headnote

B
Contempt of Courts Ac~ 1971 (17 of 1971)-Ss. 2(c)(iii) & 13-Scope ofContempt of Court-Djsciplinary control over Subordinate judiciary-Wlien Hlfh.
Court functions in a disciplinary capacity it doe1 so in furtherance of admlnl1tration of justice-What amounts to-Attack on the administrative act of a fudge,
if amounts to contempi-Administration of justice meanltig and scope· of.
The appellant, a judicial officer, was convicted and sentenced under the Contempt of Courts Act, 1971, by a Full Bench of the Orissa Hish Court
C
Registrar of Orissa High Court v. Bardt>kanta Mishra & Ors. I.L.R. [1973]
Cuttack 134.
The appellant's career ·as a judicial officer was far from satisfactory. When
ha was working as Additional District and Sessions Judge he showed FOSS in..
discipline and committed grave judicial misdemeanour. The contempt proceed·
iogs. arose out of the representation he made to the Governor for cancell.ina: the
order of suspension passed against him by the Hish Court and th~ aUcsation he
made in a memorandum of appeal he had filed· earlier in the SUpreme Court.
D
In bis representation to the Governor the appellant J;nade false insinuations th.at
the Governor cancelled the previous disciplinary proceedings against him on the
ground that the same was vitiated a• the Hish Court prejudged the matter 1Dd
the government set aside the punishment because three of the judges were biased
and were prejudiced against him, that the proceeding involved the Government
in heavy expenses on account of the -'palpably incorrect views of the Hiah.
Court", that the High Court did not gracefully accept the Govemment'1 order
cancelling his demotion, that the High Court resorted to "'subterfuge» to counterw
E
act the said decision of the government by taking a novel step and that the ·
High .Court's action suffered from patent malafides. He stated that the· other
judges had no independent judgment of their own and were infiuenced by the
Chief Justice to take a view different from what they had already taken and
characterised the High Court as an "engine of oppression.. and his order of
suspension aS ·''mysterious''. In another representation made to the Governor
tl1e appeliant alleged that the High Court on the administrative side was seriously
prejudiced and biased against him and it acted as if the charges stood established
F
requiring extreme punishm~nt and as such justice may not be meted out to ·him
by the High Court, if it conducted the departmental inquiry. He also stated that
be considered it risky to submit his explanation to the High .C.ourt and that the
High Court in the best interests of justice, should not inquite into these charses
against him.
He suggested that "the Court was not in a position to weiSh the
evidence and consider the materials on record and impose a sentence commensu·
rate with his delinquency." The ac.tion taken by the High Court was branded
as "unusual". A copy of this representation was sent to the High.- Court with
the remark that since the aigh Court was likely to withhold the representation
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it was submitted direct to the Governor. Jn the memo of appeal Sled in the
Supreme Court, the appellant alleged bias and prejudice aplnSt the Hfjh Court
and its Chief Justice. He took the plea that the Hlsh Court had become disqualified to deal with the case and expressed the v~w that "'the judaes of the
High Court had fallen from the path of rectitude and were vindictive'' and had
decided to impose substantive sentenec and that "they were not in a position
to mete even-handed justice".
In appeal to this Court. it was contended : (i) that tbe passaa:cs about
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which the ~omplaint was made did not amount to contempt of court aince they
did· not purport to criticize any 'judicial' act! of the judges and criticism of the
administrative acts of the High Court even in vilificatory terms did not amount
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B. K. MISHRA v. REG. ORISSA HIGH COURT (Palekar, 1.)
283
to contempt of court, and (ii) ·that the acts complained

## Text

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282
BARADAKANTA MISHRA
v.
THE REGISTRAR OF ORISSA ffiGH COURT & ANR.
November 19, 1973
[A. N. llAY, C.J., D. G. PALEKAR, Y. V. CHANDRACHUD,
P. N. BHAGWAT! AND V. R. KRISHNA IYER, JJ)
B
Contempt of Courts Ac~ 1971 (17 of 1971)-Ss. 2(c)(iii) & 13-Scope ofContempt of Court-Djsciplinary control over Subordinate judiciary-Wlien Hlfh.
Court functions in a disciplinary capacity it doe1 so in furtherance of admlnl1tration of justice-What amounts to-Attack on the administrative act of a fudge,
if amounts to contempi-Administration of justice meanltig and scope· of.
The appellant, a judicial officer, was convicted and sentenced under the Contempt of Courts Act, 1971, by a Full Bench of the Orissa Hish Court
C
Registrar of Orissa High Court v. Bardt>kanta Mishra & Ors. I.L.R. [1973]
Cuttack 134.
The appellant's career ·as a judicial officer was far from satisfactory. When
ha was working as Additional District and Sessions Judge he showed FOSS in..
discipline and committed grave judicial misdemeanour. The contempt proceed·
iogs. arose out of the representation he made to the Governor for cancell.ina: the
order of suspension passed against him by the Hish Court and th~ aUcsation he
made in a memorandum of appeal he had filed· earlier in the SUpreme Court.
D
In bis representation to the Governor the appellant J;nade false insinuations th.at
the Governor cancelled the previous disciplinary proceedings against him on the
ground that the same was vitiated a• the Hish Court prejudged the matter 1Dd
the government set aside the punishment because three of the judges were biased
and were prejudiced against him, that the proceeding involved the Government
in heavy expenses on account of the -'palpably incorrect views of the Hiah.
Court", that the High Court did not gracefully accept the Govemment'1 order
cancelling his demotion, that the High Court resorted to "'subterfuge» to counterw
E
act the said decision of the government by taking a novel step and that the ·
High .Court's action suffered from patent malafides. He stated that the· other
judges had no independent judgment of their own and were infiuenced by the
Chief Justice to take a view different from what they had already taken and
characterised the High Court as an "engine of oppression.. and his order of
suspension aS ·''mysterious''. In another representation made to the Governor
tl1e appeliant alleged that the High Court on the administrative side was seriously
prejudiced and biased against him and it acted as if the charges stood established
F
requiring extreme punishm~nt and as such justice may not be meted out to ·him
by the High Court, if it conducted the departmental inquiry. He also stated that
be considered it risky to submit his explanation to the High .C.ourt and that the
High Court in the best interests of justice, should not inquite into these charses
against him.
He suggested that "the Court was not in a position to weiSh the
evidence and consider the materials on record and impose a sentence commensu·
rate with his delinquency." The ac.tion taken by the High Court was branded
as "unusual". A copy of this representation was sent to the High.- Court with
the remark that since the aigh Court was likely to withhold the representation
G
it was submitted direct to the Governor. Jn the memo of appeal Sled in the
Supreme Court, the appellant alleged bias and prejudice aplnSt the Hfjh Court
and its Chief Justice. He took the plea that the Hlsh Court had become disqualified to deal with the case and expressed the v~w that "'the judaes of the
High Court had fallen from the path of rectitude and were vindictive'' and had
decided to impose substantive sentenec and that "they were not in a position
to mete even-handed justice".
In appeal to this Court. it was contended : (i) that tbe passaa:cs about
H
which the ~omplaint was made did not amount to contempt of court aince they
did· not purport to criticize any 'judicial' act! of the judges and criticism of the
administrative acts of the High Court even in vilificatory terms did not amount
A
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0
F
G
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B. K. MISHRA v. REG. ORISSA HIGH COURT (Palekar, 1.)
283
to contempt of court, and (ii) ·that the acts complained of were in the course"' .....
of the appellant challenging his suspension and holding of disciplinary proceed·
ings, in an appeal or representation to the Governor from the orders of the Hfah
Court and he gave expression to bis grievance or had otherwise acted not with a
view to malign the court ot1 in defiance of it but with the sole object of obtain ..
ing the reversal of the orders passed by the High Court against him.
HELD : The imputations have grossly vilified the Hi~ Court tending to
uffect substantially administration of justice and, therefore, ' the appellant was
rightly conVicted of the offence of criminal contempt.
[304FJ
Ci) Proceedings in contempt are always with reference to administration of
justice. All the three sub-clauses of s. 2(c) of the Contempt of Courts Act,
1971, define contempt in terms of obstruction or interference with administration
of justice and scandalisation within the· meaning of sub-elauSe ( 1) must be in·
respect of the court or the Judge with reference to administration of justice·.
[297C·Dl
Debi Prasad Shanna v.
The King-Emperor. 70 Indian Appeals, 216,
referred to.
(a) The question- ·whether contemptuous imputations made with referenCe to
the: administrative acts of the High Court amount to i;ontempt of court will
depend upon whether the imputations affect the_ administration of justice. Thi.s
is .the basis on which the contempt is punished and must· afford the neceMa:ry
ksl.
1298El
(b) The mere functions of adjudication between the parties is not the Whole
of administration of justice for any court. The presiding judge of a Court
embodies in himself the Court and when engaged in the task. Of administering
justice is assisted by a· complement of clerks and ministerial officers. The acts
in which they are engaged are acts in aid of administration of justice.
There~
fore, when the Chief Justice appoints ministerial officers and assumes disciplinary
control over then1, that is a {Unction which. though described as administrative,
i'i really in the course of admini~tration of justice. Judicial administratioi:,i. Is_ an
integrated function of Judge and cannot suffer any dissection so far as. maintenance of high standards of rectitude in judicial administration is concerned, The
whole set up of a court is for the purpose of administration of justice and the
control which the judge exercises over·! bis assistants bas also the object of main,~
taining the purity of administration of justice. (298F-H; 299A]
(c) The disciplinary control over the misdemeanour of the subordinate judi~
ciary in their judicial ad1ninistration is a function which the High Court must
exercise in the interest of administration of justice. It is a function which is
essential for the administration of justice in the wide connotation it has received
and, therefore, when the High Court functions in a disciplinary capacity, it only
does so in_ furtherance of administration of justice. It is as important for the
superior court to be vigilant about the conduct and behaviour of the subordinate judge as it is to administer the law, becaUSc both functions are essential for
administration of justice. The Judge of the superior court in whom this dlsclplinary control is vested functions as much as a Judge in sucb matters as when he
hears and disposes of cases before him. [300E: 2991?1
(d) What is commonly described as an administrative function bas been,
when vested in the High Court, consistently regarded by statutes as a function
in the administration of justice. [299F-0]
Letters Patent for the High Courts of Bombay, Calcutta and Madras Cl. 8;
Tligh Courts Act, 1861, s. 9; ihe Government of India Act, 1935, Ss. 223, 224;
Constitution of India, 1950, Arts. 225, 227 235; State of West Bengal v.
Nrfpe11dra Nath Bagclti [1966] l S.C.~. 771 referred to.
(e) Thus the courts of justice in a State from the highest.Jo the lowest are
by their constitution entn1sted with functio11s directly connected with the ·admi·
nistration of justice and it is the expectation and confidence of. all those who
have or likely to have business there that the courts perform alt their functions
284
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
on a high level of r;ctitude without fear or favour, affection or ill·will.
And, it
in this traditional confidence in the courts that justice will be administered in
them which is '"ought to be protected by proceedings in conten1pt.
[300F·G]
Rex v. Alfnon [1765] Wilmot's Notes of Opinions 243, referred to.
(f) Scandalisation of the court is a species of contempt and may take 1evc·
ral forms. A common form is the vilification of the Judge. When procccdin.c.s
in conten1pt are taken for such vilification the question which the court has to
ask is whether the vilification is of the Judge as a Judge or it is the vilification of
the Judge as an individual. If-the latter, the Judge is left to this private rcn1edies and the court has no pcwer to commit for contempt. If the former, the
court will proceed tO exercise the jurisdiction with scrupulous care and in cr.~es
which are clear and beyond reasonable doubt. Secondly, the court will hnve 11lso
to consider the degree of harm caused, as affecting administration of justice ;i,nd
if it is sJight und beneath notice, courts will not punish for conten1pt. This
salutary practice is adopted by s. 13 of the Contempt of Courts Act, 1971. If
the ·attack on the Judge· functioning as a Judge substantially affe.cb administration of justice it becomes a public mischief punishable for contempt, and it
matters not whether such an attack is based on what a Judge is ()]leged to have
done in the exercise of his 'administrative' responsibilities.
A Judge's functions
may be divisible, but his integrity and authority are not divisible in the context
of administration of justice,
[301D-F]
Queen v. Gray, [1900] (2) Queen's Bench, 36, at page 40, ·referred to.
(g) "Judicial capacity" is an ambivalent term which means "capacity of -or
proper to a Judge" and is capable of taking in all functional capaciti_es of a
Judge whether administrative, adjudicatory or any other-; eecessary for·the administration of justic~ There- is ITD warrant for the narrow view that the offence
of .scaedamafiOn of the court takes place only when the imputation haS reference to the adjudicatory functions of a Judge in the seat of justice. [3020]
Rex v. Almon [1765] Wiimot's Notes of Opinion 243; Moil Lal Gfto1e andOthas, XLV-Calcutta, 169, The State of Bombay v. Mr. P. A.I.R,
1959
Bombay, 182, Debi Prasad Shanna v. The King En1peror, 10, IndiiJ1 Appeals,
216, Spt'cial Reference fro1n the Bahania Islands, A. C, 138 at 144, QueelZ v.
Gr.ay fl900J 2 Q.B. 36, referred to.
Bra~l1111a Prakash Sharn1a and 01!1c1:s v. Tl/1e State of Utta1 Pradesh, {1953]
S.C.R. 1169. Gobi11cl Ram v. State of Maharashtra.
[1971] 1 S.C.C. 740 and
Sta1t1 v. The Editors and Publishers of Easterll Tilnes and Pra/atantra,
A.I.R.
1952 Orissa, 318, held inapplicable.
(ii) If in fact the language used amounts to contempt of court it will become
punishable as criminal contempt.
The right of appeal doeS not give the right
to commit contempt of court nor can it be used as a cover to brfug the autho·
rity of the High Court into disrespect and disregard.
[~98C~DJ
Jugal Kishorc
v.
Sita1narf:i Central Co.op, Bank. AIR 1967 S.C. 1494
referred lo.
Per Bhagwati & Krishna Iyer, JJ : (Concurring in ultimate decision) : The
dilemma of the law of contempt arises because of the constitutional need to
balance two great but occasionally conflicting principle!-4freedom of expression
and fair and fearless justice. It is a moot point whether we should still
be
bound to the regal moorings of-Rex v. Almon, [306E]
<I) The emphasis in Ss. 2(c), 3 and 13 of the Contempt of Courts Act.
1971, to the interference with the course of justice or obstruction of the administration of iustice or scandalising or lowering the authority of tho Court-not the
Judge-highlights the judicial area as entitled to inviolability and suggests a
functional rather than a personal or 'institutional' immunity.
The unique
power to punish .for contempt of itself inheres in ·a Court qua court, In its
essential role of dispenser of public justice. The phraseologlcal image projected
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B. K. l\llSHRA v. REG. ORIS_SA HIGH COUR:r (Pa/ekar, I.)
285
A
by the catena of expressions in the Act, the very conspectus of the statuti:>ry
provisions and the ethos and raison d'etre of#the jurisdiction point to thd conclusion that the text of the Act must take its colour from the general context and
confine the contempt power to the judicial-cum-para-judicial areas,
including
such administrative functions as are intimately associated with the exercise of
judicial power.
In short the accent is on the functional pe[s:onality which b
pivotal to securing justice to the people. Purely administrative acts like recruitB
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n1cnts, transfers and postings, routine disciplinary action agaim:t subordinate
staff,. executive acts in running the establishment and ministerial business .ancillary to office-keeping-these are common to all departments in the public sector
and merely because they relate to the judicial \Ving of government cannot enjoy
a higher immunity from criticism. The quintessence of the contempt· power is
protection of the public, not judicial personnel. If the slant on judicialisation
as a functional Jimitation on the contempt jurisdiction is accepted, it must exclude from its ambit interference with purely administrative acts of courts and
non-judicial functions of judges. This dichotomy is implicit in the 'decided cases.
To tre"t as the High Court has done. "the image and personality of the High
Court as an integrated one'' and to hold that every shadow that darkens it is
contempt is to forget life, reason and political progress.
The basic "'public
D
duty" of a Judge in his ''judicial capacity'" is to dispense public justice in Court
·and anyone who obstructs or interferes in this area does so at his peril. Likewise, personal" behaviour of judicial pen1onnel, if criticised severally or even
sinisterly. cannot be countered by the weapon of the contempt of court. [309C-E;
3l~A·FJ
The paramount but restrictive jurisdiction to protect the
public:
against
substantial interference with the stream of justice CaDJlot be pol1uted or diffused
into an inumidatory power for the judges to strike at
adve~e comments on
adniinistrative, legislative (as under articles 225, 226 and 227) and extra~judicial
acts. Comriionsense and principle can certainly accept a valid_ administrative aria
so closely integrated with court work as to be stamped with judicial -character
such as constitution pf benches, transfer of cases, issue of administrative directions regarding submission of findiugs or disposal of cases by subordinate courts
E ' and the like. Not everything covered by art. 225, 227 and 235 will be of this
, texture. Thus __ even_though Judges and courts have diverse duties functionally
-~-an<l'histOrically and jurisprudentially, the-value which is dear to the community
and the function which deserves to be cardoned _off from public molestation is
judicial.
Vicious criticism of personal and administrative acts of Judges may
indire<;tty mar their image and weaken the confidence of the public in the judiciary but the countervailing good, not merely of- free speech but also of greater
raith generated by exposure to the actinic light of bona fide even if rnargina11y
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overzealous, criticism cannot be over-looked.
[315B:E]
'
In the instant case the suspension of the District Judge was so woven into
and integrally c6nnected· with the administration of justice that it can be regarded
as not purely an administrative act but a para-judicial function.
The appeal
was against th! suspension which was a preliminary to contemplated disciplinary_ action which was against the appellant in his judicial capacity for acts of
judicial misconduct. The control was, therefore, judicial and hence the unbridled attack on the High Court for the step was punishable as contempt. The
impugned conduct of the contemner was qua Judge and the evil criticism was of
a supervisory act of the High Court. [3150-H]
. .
,
(ii) A large margin. must be allowed for allegations in remedial representa_tion; but extravagance forfeits the protection- of good faith. [315H]
.
.In the matter of a Special Reference from the Bahama Islands, [1893) A.C.
139· 149· Debi PraspJ Sharma v. The King Emperor, [1942] 70 I.A.
216,
Ka)'.iath 'namodaran v. lnduchoodan, A.I.R. 1961 Keraia 321, K. L. Gaubd.1
case, LL.R. [1942) Lah.411, 419, Rex v. B. S. NpYyar, A.LR. 1950.AU.
549: 551: 555. In re S. B. Sarbad/Jicary, [1906] 34 XX I.A. 41, Brahma Prakash
'Sharmti v. State of Uttar Pradesh, [1953] S.C.R. 1169. State v. N. NaT?amani, ·
A.LR. 1959 Pat. 373 and In the mat/er of an Advocate of Allahabad, A.T.R.
I 935 All. l. referred to.
286
SUPREME COURT REPORTS
[ 1974 J 2 S.C.ll.
Remedial process cannot be a mask· to malian a judae.
Jrrelevant or unvarnished imputations under the pretext of grounds of appeal amount of foul
play and perversion of the legal process.
In the instant case the appellant, a
senior officer who professionally weighs his thoughts and words bas no justification for the immoderate abuse he has resorted to. In this sector even truth
is no defence, as in the case of criminal insult-in the latter because it may
produce violent breaches and is forbidden in the name of public peace, and in'
the former it may demoralise the community about courts and is forbidden in
the interest of public justice as contempt of court. The Court being the guardian
of the people's rights, it has been held repeatedly that the contempt jurisdiction
should be exercised with scrupulous care and only when the case is clear and
beyond reasonable doubt.
[317C-E; 318H]
State of Uttar P1·ades/J v. Sllyani Sunder Lal, A.LR. 1954 All. 308, Rex v.
R. S. Nayyar, A.I.R. 1950 All. 549; SS4, State of Madhya Pradesh v.
l/Jnll
Wtanker,
[1959]
S.C.R.
1367;
Govind
Ram
v.
Stat< of MahartUhtro,
(1972] I S.C.C. 740, Swamamayi Panigrahi v. B. Nayak, A.J.R. 1959 Orissa 89,
Quintin Hogg, 1968 2 W.L.R. 1204; 1206-7, C. K. l)apht!iry v. 0. P. Gupta,
Al.R. 1971 S.C. 1132-1141 para 52, R v. Gray, [1900] 2 Q.B. 36, Sp•cial
R<ference No. 1 of 1964. [19651 I S.C.R. 413; SOI; referred to.
(iii) Jn sum, the key note word is 'justice' not 'judge'i the key note thou1ht
is unobstructed public justice, not the self defence of a judge; the comer.atone
of the contempt law is the accommodation of two constitutional value&-the
right of free speech and the right to independent justice. The ignition of conr
tempt action should be substantial and mala fide interference with fearless judicial action, not fair comment or triYial reftections on the judicial process and
personnel.
[319EJ
CRIMINAL APPELLATE JuR1so1cnoN: Criminal Appeals Nos. 41
and 77 of 1973.
Appeals under Section 19 of the Contempt of Courts Act, 1971
from the Judgment and Order dated the 5th February, 1973 of the
Orissa High Court at Cuttack in Criminal Miscellaneous Case No. 8
of 1972.
A. K. Sen, G. L. Mukhoty and C. S. S. Rao, for the appellant (in
Cr.A. 41/73).
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G. Rath, and B. Parthasarathy, for the appellant (In Cr. A. 77/73).
F. S. Nariman, Additional Solicitor General, B. M. Patnaik aild
Vinoo Bhagat, for respondent No. 1 (in Cr. A. 41173) and respondent
F
No. 2 (in Cr. A. 77/73).
·
G. Rath and u. P. Singh, for respondent No. 2 (in Cr. A. 41/73).
A. K. Sen and C. S. S. Rao, for respondent No. 1 (in Cr. A. 77/73),
The Judgment of the Court were delivered by
PALEKAR, J.-This is (Criminal Appeal No. 41
of
1973)
an
appeal by one Baradakanta Mishra from bis con'1ction and sentence
under the Contempt of Courts Act, 1971 by a Full Bench of jive
Judges of the Orissa High Court. The Judgment is reported in I.L.R.
, [1973] Cuttack, 134 (ReKistrar of the Orissa High Court v. Baradakanta
Mishra and Ors.).
The appellant started his career as ai Munsit in 1947.
His career
as a Judicial Officer was far from. satisfactory. In 1956 he was promoted on trial basis to the rank of a Sub-Judge with the observation.
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B. E. MISHB;A v. R.BG. OR.ISSA HIGH COUJ.T (Palekar, J.)
287
that it he was :ftound incompetent, suitable action would be taken. In -
due course, he was confirmed as a Subordinate Judge. On April, 2,
1962 he was promoted, again on, trial basis, to the rank of Additio-1
District Magistrate <Judicjal) which is. a post in the cadre of the ·Orilea
Superior Judicial Service (Junior Branch). As his work was fauni
unsatisfactory, he was reverted to his substantive post of a Subordinate
Judge on January 4, 1963 .. The order of reversion was challenged by
him in a Writ Petition which was dismissed by a Bench of Ahmad,
C.J. and Barman, J. The case is reported in [I.L.R.] 1966, Cuttack,
503. An appeal to the Supreme Court was dismiissed on February 6,
1967. While working as a Subordinate Judge, after reversion, he
was suspended from service from 15th May, 1964 to 9th April>' 1967
during the pendency of a. disciplinary proceeding against him. That
proceeding ended in a light punishment of two of his increments
C
being stopped. From the above order of punishment, the appellant
filed on l'b-10-1967 an appeal to .the State Government. The State
Government by its order dated 15-7-1970 allowed the appeal on the
ground that the Public Service Commission. had not been· consulted
by the High Court belbre imposing the punishment, and that tile
Cbarg~Sheet .erved on the appellant having indicated the proposed
punishment vitiated the disciplinary proceedings. After the case was
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9Cllt back to the High Court the charges which had been earlier established, were framed again and served on him on 13-2-1971 and we
are infolllll:d that the proceeding is still pending.
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In the meantime, it appears, he was promoted to the post of the.
Additional District Magistrate in February, 1968 though Ille High
Court was of opinion that he was unbalanced, <jll1ll'I'elsome, recltle!18
and indisciplined. The aigh Colll't $J1ecili.cally observed that though
the appellant suffered fwm tliese defects, be was sincere and. hardwor'king and the other o.1lieers who .. bad superseded him as Additional
· Djstrict Magistrates were not much better. The promotion was lllllde
on trial basis for a period of ooe year with the observation that if during that period his work was found to be unsatisfactory, he woU!d 'be
reverted to the rank of Sub-Judge.
In that year the High Court had to :lace an abnormal situation by
tbci retirement of many District Judges on account of the decision
of lhe Government reducing the age of retirement from 58 to '55
yeal'I. Many vacancies occurred and the appellant was then promoted as an Additional District and Sessions Judge on trial basis for six
months in July, 1968. In January, 1969 he was allowed to continue
on a temporary ·basis till further orders subject to further review of
hie work at 11be time of confirmation. It is worthy o~ note that this
decillion to continue was taken on the report of the pre9Cllt Chilli'
Justice G. K. Misra who was at that time the Administtat.ive Ju!lae.
On May 12, 1969 his services were placed at the dispasa! of the
Government in the Law Department, who appointed hlllll as Joint
Secretary, Law, till October 12, 1969. From October 13, 1969 .to
H
Elecember 4, 1970 be was appomted by the Government as the Com·
missioner of Endowments. The Government was thoroughly diwatis,
lied with his work and on December 5, 1970 his services were replaced
at the disposal of the High Court. The appellant went on leave.
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SUPREME COURT REPORTS
[ 1974 J 2 s.c.R.
On his return to the Judicial cadre, he functioned as Additional
District and Sessions Judge, Cuttack till July 14, 197.1 when he was
posted to act as District and Sessions Judge for 12 days in the temporary leave vacancy of the permanent District Judge Mr. P. K.
Mohanty. . When he was thus acting as District and Sessions Judge
for a short period by way of stop-gap arrangement, the High Court
placed several restrictions on his administrative pOWCrs.
.
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In the brief .period that he was working as Additional District and
Sessions Judge, Cuttack, the appellant showed gross indiscipline by
defying a request made by the District, Jud~ in due course of administration. He also committed a grave judicial misdemeanour. He
heard an appeal and posted it for judgment on June 22, 197 l. The
judgment was delivered on that date and the appeal was dismilsed.
The Order-Sheets of the judgment were signed by the appellant and
the judgment was duly sealed. Later in the day, however, the appellant scored through hi.s signatures both in the Order-Sheet and in the
judgment and returned the ~ecord of the appeal to the District Judge
for disposal by making a false statement that the judgment had not
been delivered and that the parties being known to him it was not
desirable that he should further hear the appeal, after taking additional
evidence for which a petition liad been filed.
This was something
quite extraordinary from a Judge of the appellant's standing. When
these matters were brought to the notice of the High Court the Regis.
trar by Order of the High Court recomlilended to the Government
that the appellant be reverted to the poSt o~ the Additional District
Magistrate (Judicial). There were already three departmental proceedings pending against the appellant and he had also been convicted
in a contempt case. The High Court expressly informed the Government that these four matters had not been taken into consideration in
recommending his reversion and that his reversion was sofoly due to
the fact that his work was found unsatisfactory. The recommendation
was accepted by the Government who on September 1, 1971 reverted
the appellant to the post of the Additional District Magistrate.
On September 10, 1971 .the appellant made a representation to
the Chief Minister praying fan the withdrawal of the order of reversion
and, if necessary, to suspend him after drawing up a regular departmental proceeding. The representation was forwarded to the Government with the comments of the High Court.
Something unusual happened. Without anv further consultation
with the High Court, the Governor cancelled the .reversion order by
notification dated March 21, 1972 and on the same day the Chief
Minister wrote a confidential D.O. to the Chief Justice by name explaining the circumstances under which the reversion order w2s cancelled. The Chief Minister appeared to rely upon a decision of ~
Orissa High Court which had no application to the facts of
thJ.S
particular case. But any way, it would ~ppear that by reason of the
Order dated March 21, 1972 the revemon of tho appellant to the
post of the Additional District
Magistrat~. stood ~an~elled and. he
continued to act in the post of the Add1t10nal District & Sessions
Judge. Cuttack.
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B. K. MISHRA v. RBG. OR!SSA HIGH COURT (Palekar, J.)
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The D.O. letter of the Chief Minister remained unopened till the
retum of the Chief Justice from New Delhi where he had gone to
attend the Chiof JusUcea Conference. It was opened by the Chief
Justice on return on March 26, 1972. But in the
meantime the
appellant, who had gone on leave, having known about the order
passed on March 21, 1972 asked for his posting. The rules required
that on return from leave he should produce a medical certificate and
he was, accordingly directed to pi:oduce one,
On March 28, .1972 the Chief Justice placed the letter of tho Chief
Minister for
consideration be!ore the Full Court. The Full Court
took the decision to start a disciplinary .proceeding against the appcl·
!ant and, pending the same, to place him under suspension in exercise
of their powers under Article 235 of the Constitution. Accordingly
on March 30, 1972 the appellant was placed under suspension and
his headguarters were fixed at Cut(ack.
The present contempt proceedings arise out of events which took
place alter the suspension order. On receiving the suspension order
the appellant addressed by letter an appeal to the Governor of Orissa
for cancelling the ord.er of suspension and for postin!! him directly
under the Government That is Annexure 8. As the High Court
was of the view that no appeal lay .from an order of suspension pend·
ing disciplinary charges, it did not forward the appeal to the Governor.
In fact on April 28, 1972 the Registrar of .the High Court intimated
the State Government that the appeal filed by the appellant to the
Govern9r had been withheld by the, High Court as no such appeal
lies against the order of suspension penlling disciplinary proceedings.
The appellant was also intimated accordingly,
On April 29., Hl72 charges in the disciplinary proceeding were
framed by the High Court and commnnicated tci the appellant and the
appeltant was directed 16 llre his reply to the charges by a, certain date.
On May 14; 1972 the appellant wrote three letters. One was.
to the Registrar and is Annexure 13. By this letter the appellant inti·
mated that he had moved the Governor to transfer the disciplinary
proceedings to the Administrative Tribunal and that he would take
all other alternative steps-administrative and judicial-to avoid the
proceeding being dealt with by the High Court. The second letter
was addressed to the Governor and is Annexure 15. It purports to
be a representation with a prayer to direct the High Court to forward'
the appeal withheld by it. There was a third letter of the same date
addressed directly to the Governor purporting to be a representation.
That is Annexure 16. The prayer was that the departmental pro·
ceedings be reterred to the Administrative Tribunal. A copv of this
letter was sent to the Registrar of the High Court with)he following·
remark:
"As the Honourable C9urt are likely to withhold such
petitions, this is submitted direct with copy to the Honourable Court for information. Honourable Court may oo
pleased to send their comments on this petition to the
Governor."
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SUPREME COURT REPORTS
[ 1974 J 2 s.c.R.
On May 22, 1972 the appellant addressed a Jetter (Annexure 14)
t? the Registrar intimating him that he would not submit any expl.ana·
llon to the charges framed against him until his representation to the
Governor waa disposed of. He also stated therein that he may file
a writ application for the purpose and would take· the matter to the
Supreme Court, if necessary. He also stated that he cannot wait for
the permission of the High Court ~ leaving the Headquarters.
It is the contents of these letters on which a show-cause notice
'for contempt was issued to the appellant under the orders of the Full
Court on July 3, 1972.
On 27·7-1972 the appellant filed his preliminary objection to the
show.cause notice challcngin,g its maintainability on the ground that
whatever he had said had no reference to the judicial fUDctlon• of
any Judge of the Hlib Court Biid, ~fore, no contempt proceedlnp
would lie. He preued for a decision on the point. When the matter
came before a Division Bench on 3·8·1972 the appellant waa directed
to file his full reply to the show.cause notice. Accordlnily, It was
filed on 7-8-1972 and the appe.llant again pressed for a decision 011
hit preliminary objection. 1'1ie Division Bench refused to deal with
the ~rellminary objection and so on 30..8-1972 the appellant filed
Crinunal Appeal No. 174 of 1972 in this Court praying for cancella·
t!on of the contempt proceedings challengini therein the maintain·
ability of the proceedings and complainina: of bias and prejudice of
the High Court particularly the Honourable the Chief Justice and
Mr. Justice R. N. Mishra. He said he apprehended that he would
not get a fair deal if the matter is disposed~ of by the High Court.
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On 21-11-1972 the Supreme Court appeal was withdrawn.
At · E
the instance of the Division Bench, a Full Bench of five Judaes was
constituted by the Chief Justice and the case came on for liearin1
before the Full Bench on <I-I 2· 1972. In the meantime the appeal
memo filed by the appellant in the Supreme Court was available and
since it contained matter which amounted to contempt,
additional
charges were framed and a show.cause notice was issued to the appel·
· !ant in respect of these additional charp. A copy of the appeal
memo containing the statements amounting to contempt is Annexure
20.
.
The Annexures were examined by the court with a view to consider . whether the statements therein amount to a criminal contempt.
•Qn a full and prolonged consideration the Full Bench came to the
unanimous conclusion that Annexures 8, 13, 14, 16 and 20 conWn
matters· which amounted to gross contempt of court and since the
appellant had not even offered an apology, this was a matter in which
· serjoUS notice ought to be taken, especially, in view of previom COD·
victions for contempt, and, accordingly sentenced the appellant to two
·months simple imprisonmeJ!t though in their opinion be deserved the
maximum sentence of six months.
The several Annexures referred to above have been extracted by
the Full Bench in its judgment and it is not necessary to repro~cc
'them here. It will be suffici~nt to reproduce only those portions
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which were regarded as grossly contemptuous and had been under.;.
lined ln the judgment.
AnntXW'e 8.
As atr-..ady stated th1s 1s a letter in the form o( an appeal addressed
to the Governor of Orissa complaining against the · suspension· and
prayin" for stay of operation ot the suspension order on .the basis.
of the
0advance copy sent to the Governor for its cancellation and for
pasting the appellant directly under the Government: Jt Is
dated
1 <>-4-1972.
Tho appeal had been routed through the High Court
but the High Court did not forward the same. In this anoexure re·
ferenco 1s made to the previous appeal filed by him against the order ·
of the High Court stoi>Pins? his two Increments after a departmental
proceeding and how tliO Cfovemor in appeal had cancelled· even . the.
very departmental proce:din:J in the. appeal.. An Interpretation was.
put on that order wh!Ch it did not bear and It was made out, thou;:b
falsely, that the punlshment had bec,n set a.side on the basis of tlie·
allegitions madi by the a;ipcllant that some Honourable Judges o!·
the High Court had be;:a biased and prejudiced against him.. The.
appellall: also asked the Governor to apprCclate that by the said de·.
partmental proceeding1 the Hl&h Court had put the I;xchequer to a.
very heavy loss "all dn acc'Olllll of IM palpabl1 incorrect views ot
lhe High Cout'I." .'.Then th:.. appellant says that the present action,.
namely; the order of suspension clearly disclosed ma/a/ides. He suggested that there were several "embarrassing events" which he 'could·
offer for consideration of the Governor but he was content •at th1s
sta~ to refer to only on:: of them. In this conoection he referred ·to.
the fact ·th~t when he Intimated to the High Court that he desired
to join duties after his leave on March 20, 1972 he was informed by
the Hilth Court on March 23, 1972 that his re-posting after leave
would be decided· after the medical board reported LI to his fitness.
to join after leave. This, according to the appellant,
showed that .
thc High Court had already taken a decision m the absence of theOtlef · Justice that the appc!!ant should be. re-posted. But on the
return- of the Chief Justice from ·New Deihl there was a sudden
change. He clearly •U.\l&ested that after the Chief Justice's retum
the court took the decision to suspend him and In this connection he,
made the following observations : ·
"This decision of the High Court, reached at before the
Honourable the Chief· Justice attended the High Court on
the 27th March after his 10 days of absence, clearly indicates· that no proceeding, much. less suspension, against the
appellant was under contemplation till 'that day, but on the
other hand, the appellant's place of posting was under consideration of the High Court. Circumstances clearly disclose
.that after the return of the Honourable Chief Justice, the
Government's order, disapproving the
High C<>urt's views
about the .appellant's demotion, was not accepted gracefully
by the High Court, and so subterfuge was adopted to counteract the said decision of the Government .by a novel step,
thus to ~prlve the appellant of the result of the said ~i
sion •. In' view of this patent mal{z fide alone, such an action-
:292
SUPREME COURT REPORTS
( 1974] 2 S.C.R.
is liable to be quashed, by any competent Court of law."
Then at .a later stage the appellant says :
"The appellant happens . to be the senior·most .iudicla\
officer in the State as regards length of service, and he has
already 20 more months before attaining the age of superal:inuation. Hence, be may not deserve the present unwarranted, sudden and mysterious suspension, giving rise to speculations, touching his integrity."
Then again he says :
". . . . . . the treatment of the High Court may require
that after cancellation of this order of suspension, he be
brought under the direct control of the Govemme.nt in a special post for the rest of bis service career of hardly 20
months more."
The High Court at para 61 of the judgment bas observed as
follows :
"In the appeal memo (Annexure-8) the contemner attributed mala fities, bias and prejudice to the High Court. l{e
made false insinuations that the Governor cancelled the previous disciplinary proceeding against the contemner on the
ground that the same was vitiated as the High Court bad
prejudged the matter and the Government set aside the
punishment on the ground that three of the Honourable
Judges were biased and prejudiced against him. He alleged
that the disciplinary proceeding involved the Government in
heavy expenses on account of the palpably incorrect views
of the High Court.
He asserted that the order of suspension as per Annexure-6 was mala fide. He stated that he
would produce more facts relating to the mala fides of the
Hi.$ Cou'rt before the Governor.
He alleged that the High
Court did not gracefully accept the Government's order can·
celling his demotion, and the High Court resorted to a subterfuge io counter-act the said decision of the Government
by taking a . novel step, and that the High Court's action
suffered from patent mala fide.
He stated that there was
a turn of event after return of the Chief Justice from the
Chief Justices' Conference and that the High Court did not
nccept Government's decision gracefully, and that the other
Judges bad no independent judgment of their own, and were
influenced by the Chief Justice to take a view, different from
what they bad already taken, to give a posting order to the
cnntemner, and that the High Court resorted to a subterfuge.
He wanted protection of the
Governor against the High
Court which be insinuates as an engine of qppression.
He
characterised the High Court's order of suspension as mysterious and prayed that the Government should post him
directly under it."
We have no doubt that the Full Bench bas correctly •ummarizcd the
effect of Annexure-8, and we have nothing more to add.
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Annexurcs 13 and 14 should go together.