(1.) BY order of the Full Court to initiate a proceeding for contempt, the Registrar of the High Court issued the contempt notice dated 3-7-1972 (here-inafter to be referred to as the Notice) to Shri Baradakanta Misra, the alleged contem-ner (hereinafter to be referred to as the contemner) calling upon him to appear in person and to show cause on 3-8-1972 as to why be shall not be punished or any other appropriate order not be passed against him for contempt of the High Court. On 26-7-1972 the contemner filed a petition by way of preliminary reply. On 7-81972 be filed his show-cause application. The contemrer filed Criminal Appeal No. 174/72 before the Supreme Court to quash the notice. Therein he made the State of Orissa a party through its Chief Secretary. The Legal Re-membrancer-cum-the ex-officio Additional Secretary, Law Department, filed an affidavit (Annexure-1)Equivalent Citation: before the Supreme Court on behalf of the State giving detailed history with reference to the averments of the contemner in the memorandum of appeal (Annexure-20 ). The Criminal Appeal was ultimately dismissed by the Supreme Court as withdrawn by Annexure-18 on 21-11-1972. In this Court the State has filed an affidavit on 29-11-72. The contemncr filed a reply thereto on 18-12-72. Originally the case was being heard by a Bench consisting of R. N. Misra and B. K. Ray, JJ. They referred the matter to a larger Bench as important questions of law are involved. This is how the case came before this Full Bench.
(2.) FACTS relevant to the notice are narrated hereunder:
(i) The substantive appointment of the contemrer is that of a subordinate Judge. On 2-4-62 he was promoted on trial basis to the rank of Additional District Magistrate (Judicial) which is a post borne in the cadre of the Orissa Superior Judicial Service (Junior Branch ). He was reverted to his substantive post of a Subordinate Judge on 24-1-63 as his work was unsatisfactory, without a disciplinary proceeding being initiated under Article 311 (2) of the Constitution. He challenged the order of reversion in a writ petition which was dismissed by a Bench consisting of Ahmad, C. J. and Barman, J. , in ILR (1966) Cut 503 (Baradakanta Misra v. State of Orissa ). Special Leave Application (Civil)No. 53 of 1967 against that decision was dismissed by the Supreme court on 6-2-67. While working as a Subordinate Judge after reversion he was suspended from service from 15-5-64 to 9-4-67 during the pendency of a disciplinary proceeding against him. The disciplinary proceeding was disposed of with a light punishment on the contemner on sympathetic considerations. Two of his increments were stopped. Against that order the contemner filed an appeal to the State government which sent back the case on the ground that the Public service Commission was not consulted by the High Court before imposing the punishment and that the charge sheet served on him indicating the proposed punishment vitiated the disciplinary proceeding. The order of the State Government was contrary to law. Non-consultation with the Public Service Commission, if consultation was at all necessary, was a mere irregularity and did not vitiate the proceeding. Indication of the nature of the punishment in the charge-sheet does not, by itself, establish any bias (see ILR (1972) Cut 294, Janardan Kar v. State of Orissa ).
(ii) On account of retirement of many District Judges with effect from 18-68, as a result of reduction in the age of retirement on superannuation of Government servants from 58 to 55 years, many vacancies occurred and the contemner was promoted to the rank of a District and Sessions judge in the Orissa Superior Judicial Service (Senior Branch) on trial basis for a period of six months with effect from 31-7-1968 from the post of Additional District Magistrate (Judicial) to which he had been in equivalent Citation: the meanwhile promoted. He was posted as Additional District Judge, ganjam, till 24-11-68 and thereafter as District and Sessions Judge in the same judge-ship. In January, 1969 he was allowed to continue as District and Sessions Judge on temporary basis until further orders, subject to review of his work at the time of confirmation.
(iii) From 12-5-69 to 12-10-69, his services were placed under the government in the Law Department and he functioned as Joint secretary, Law. From 13-10-69 to 4-12-70, he worked as Commissioner of Endowments. From 5-12-70 his services were replaced at the disposal of the High Court by the Government. He remained on leave from 5-1270 to 20-6-71, except for one day on 5-4-71, when he joined as the additional District and Sessions Judge of Cuttack. From 21-6-71 till 267-71, he was functioning as Additional District and Sessions Judge, cuttack, except for a period of 12 days from 14-7-71 to 25-7-71 when he was posted to act as District and Sessions Judge of Cuttack during the leave vacancy of the District Judge Shri P. K. Mohanty. The Court, while posting him as District and Sessions Judge, for a short period by way of interim arrangement, imposed upon him several restrictions, such as, he should not effect any transfer of Class III and Class IV employees in the judgeship; he should not initiate or dispose of any disciplinary proceeding; he should not incur any expenditure from the contingency allotment exceeding Rs. 5/-; he should not make any inquiry, or undertake any tour by posting cases outside headquarters and that he should not deal with important administrative matters except correspondence of routine nature.
(iv) Character roll remarks of Shri B. K. Misra recorded by the Full Court for the period from 1968 to 1970 are as follows: 1968 "fairly intelligent, but hasty in his judicial work. Administrative control satisfactory. " 1969 "judicial Work Hasty. Arbitrary in reaching his decisions. Administrative control He is arrogant. Even does not hesitate to flout the directions and writs issued in judicial proceedings by the High Court. Heshould mend his ways. " in an administrative file the Court recorded the following remarks in the year 1970:
"disobedient, negligent in duty and lacking in administrative control. " for the period from 12-5-69 to 4-12-70 when Shri B. K. Misra was equivalent Citation: working under the Government as Joint Secretary, Law, and commissioner of Endowments the Secretary to the Government in the law Department recorded the following remarks in his character roll: "his administrative ability, power of taking responsibility, zeal, official conduct and control of staff were highly unsatisfactory. His performance of duty was poor. He was quarrelsome and undignifying. He was acting in an indisciplined, defiant and arbitrary manner. He was not able to function in a team spirit. In law Department file No. End. 77/70 Government were pleased to hold, "he does not appear to be fit to hold the office of any Head of Department. " the Law Secretary wrote to the High Court that on the aforesaid records "he was directed to be relieved immediately of his assignment as Endowment Commissioner and his services were replaced at the disposal of the High Court I have strong doubts about his honesty. " The above remarks of the Law Secretary were endorsed by the Chief secretary Shri A. K. Barren except regarding the aspect of honesty about which he has no information, (v) On 30th June. 1971, the Full Court examined the question of confirmation of the contemner in the cadre of district and Sessions Judges and unanimously resolved that he was not fit for confirmation in the said Service. Thus, during the period the contemner was officiating in the Senior Branch of the Orissa Superior judicial Service, his judicial work was found unsatisfactory; he was found to be indisciplined, quarrelsome and lacking in administrative ability and was unable to cope with the duties and responsibilities of a District and sessions Judge. (vi) During the period the contemner functioned as Additional District judge, Cuttack, he showed gross indiscipline. In an election case the high Court issued summons to be urgently served on the witnesses. Direction was issued to the District Judge of Cuttack, Shri P. K. Mohanty, to personally see that effective steps are taken for service of the said summons. Shri Mohanty received the Court's letter at Jajpur where he was holding his sessions circuit. No Civil Court Registrar had been posted at Cuttack by then. The District Judge, Shri Mohanty, requested Shri b. K. Misra, Additional District Judge, Cuttack, to look into the matter. He made the following endorsement to Shri Misra:
"a. D. J. Kindly look into the matter and see that the summons is immediately served by deputing a special peon. The matter should be put up to me on my return to headquarters. Sd. P. K. Mohanti. District Judge. 5-7-71," equivalent Citation: the contemner took exception to the endorsement of the District Judge with the following remarks: "d. J. You should request the Registrar to do it. I take objection to such endorsement. You may however mark a paper to me for needful without asking me to carry out in a particular manner. Sd. B. K. Misra. 6-7-71. " Under Section 9 of the Bengal, Agra and Assam Civil Courts act, 1887 the Dist. Judge has administrative control over the additional District Judge. The conduct of Shri Misra in making the aforesaid remark was subversive of official discipline and decorum. (vii) The other important incident related to the disposal of M. A. No. 33/1 of 1970-71 in the file of the contemner. He heard the appeal and posted it for judgment to 22-6-71. Judgment was delivered on that date dismissing the appeal. The order sheet and the judgment were signed by the contemner and the judgment was sealed. Later in the day the contemner scored through his signatures both in the order sheet and in the judgment and returned the record to the district Judge for disposal by making a false statement that the judgment had not been delivered and the parties being known to him, it was not desirable that he should further hear the appeal and dispose of the petition for taking additional evidence. The aforesaid action of the contemner was not only illegal and without jurisdiction but also revealed utter disregard for law, procedure and truth unbecoming of an officer of the rank of a District Judge. (via) On the basis of the aforesaid facts the Registrar by order of the High Court addressed confidential letter No. 5122/xix21/ 71 (Annexure-1) to the Secretary to the Government of orissa, Home- Department, Bhu-baneswar, on 26th of July, 1971 to terminate the temporary service of Shri B. K. Misra as district Judge and to revert him as Additional District magistrate (Judicial ). The High Court made it clear to the government that it was not necessary to resort to a disciplinary proceeding under Article 311 (2) of the constitution as Shri Misra had no right to the post, not having been confirmed, and as the proposed reversion was not by way of punishment but as his work was found unsatisfactory. In paragraph 8 of that letter the position was summed op thus: equivalent Citation: "shri B. K. Misra has throughout proved himself to be unbalanced, quarrelsome and indisciplined in his official conduct and behaviour. His judgments are hastly, arbitrary and slipshod. Though he was given chances of promotion on trial basis as a matter of sympathetic consideration he has not been able to change his attitude and to correct himself. It is expedient that he should be reverted from the present post. The reversion from the Senior Branch to the Junior Branch of the Orissa Superior Judicial service is to be made purely on the ground that the officer is considered, after trial, to be unsuitable for such higher service as envisaged in Explanation (d)of Rule 13 of the Orissa Civil Services (Classification, control and Appeal)' Rules. In such circumstances no departmental proceedings are necessary to be started. Accordingly the Court, after careful consideration, recommend that the temporary appointment of Shri Misra to officiate in the cadre of district and Sessions Judges should be terminated and he should be reverted to the rank of Additional district Magistrate (Judicial) with immediate effect. " the Court made it clear that three departmental proceedings were pending against the contemner and he had been convicted in a contempt case and all these four matters were not taken into consideration while recommending his reversion.
(ix) On 1-9-71 the contemner was reverted to the Junior branch of the Orissa Superior Judicial Service by order of the governor by notification (Annexure-2) dated 1st September, 1971. On 10-9-71 the contemner made a representation (Annexure-3) to the Chief Minister praying for withdrawal of the order of reversion and for drawing up of a regular departmental proceeding against him and for placing him under suspension during the pendency of the proceeding, if necessary. On 19-1-72 the High Court sent its parawise comments (Anexure-4) on the representation of the contemner. On 21-3-72 the Governor of Orissa cancelled the reversion order by a notification (Annexure-5) dated 21st march, 1972. (x) On 21st March, 1972 the Chief Minister, Shri Biswanath das, wrote confidential D. O. No. 997/c. M. (Annexure-IX) to the Chief Justice by name explaining the circumstances under which the reversion order was cancelled. In the last paragraph he stated: "in view of the decision, the State Government felt necessary to restore Shri Bara-dakanta Misra to his position so as to enable him to stand the scrutiny prescribed in the decision of the Hon'ble High Court. " the Chief Justice had been to New Delhi to attend the Chief justice's Conference and was absent from headquarters from 16th March, 1972 to 25th March, 1972. The confidential demiofficial letter of the Chief Minister was opened by the Chief justice on his return on 26-3-72 and both the demi-official letter of the Chief Minister and the notification (Annexure-5)were placed before the Full Court on 28-3-72 for consideration. The Full Court took the decision to start a disciplinary proceeding against Shri Baradakanta Misra and pending the same to place him under suspension in exercise of the powers under Article 235 of the Constitution, The Full Court resolution is extracted (see para 23 (xy) of Annexure-1 being the counter affidavit of the State filed in Crl. A. No. 174/72 in the Supreme court ). "proceeding of the Full Court meeting held on the 28th march, 1972. PRESENT: 1. The Hon'ble the Chief Justice. 2. The Hon'ble Justice Sri S. K. Ray 3. The Hon'ble Justice Sri B. K. Pafra 4. The Hon'ble Justice Sri R. N. Mista 5. The Hon'ble Justice Sri B. K. Ray 6. The Hon'ble Justice Sri K. B. Panda 7. The Hon'ble Justice Sri B. C. Das. (The Hon'ble Justice Sri S. Acharya was absent for the reason that Sri B. K. Misra is a close relation.)Discussed the Home Department Notification No. 10720 dated 21-3-1972 and demi-official letter No. 997 dated 21-3-72 from the Chief Minister, Orissa to the Hon'ble the Chief Justice in context of Court's letter No. 5122 dated 26-7-71 recommending termination of the temporary appointment of sri B. K. Misra in the Senior Branch of the Orissa Superior judicial Service. The recommendation had been made on a review of the career of Sri Mishra and also on the basis of certain specific allegations made against him which would have justified initiation of disciplinary proceeding against him. But no proceeding was initiated then because his officiating appointment in the Superior Judicial Service (Senior Branch)was recommended to be terminated. In the circumstances, resolved that departmental proceedings be now drawn up against Sri B. K. Misra. Resolved further that pending drawal and finalisation of the departmental proceeding Sri Mishra be placed under suspension. " (xi) The Chief Justice wrote D. O. No. 13 C. J. (Res) dated 3rd april, 1972 (Annexure-X) to the Chief Minister in reply to his letter (Annexure-IX ). During the absence of the Chief Justice the contemner had sent a letter to the High Court that he might be permitted to join and he was called upon to produce medical certificate as required under the rules and no decision had been taken by the Court before 28-3-72 to give a posting order to the contemner. (xii) On 30th of March, 1972, the contemner was placed under suspension by notification No. 48-A (Annexure 6) and his headquarters was fixed at Cuttack. On 10-4-72 the contemner addressed the letter (An-nexure-8) purporting to be an appeal to the Governor of Orissa for cancelling the order of suspension and for posting him directly under the Government. On 14-4-72 the Registrar of the High Court asked the contemner by his letter (Annexure-11) as to whether he bad shifted to Cuttack in compliance with the order of the High court. On 18-4-72 the contemner relied to the Registrar by his letter (Annexure-12) that he continued at Bhubaneswar and had not complied with the order. On 28-4-72 the Registrar of the High Court intimated the State Government by letter (Annexure-9) that the appeal filed by the contemner had been withheld by the High Court as no such appeal lies against the order of suspension pending disciplinary proceeding. The contemner was also intimated by Annexure-10 that the appeal had been withheld by the High Court. (xiii) On 29-4-72 charges (Annexure-7) framed by the High court were communicated to the contemner. On 14-5-72 the contemner intimated the Registrar by his letter (Annexure-13)that he had moved the Governor to refer the disciplinary proceeding to the Administrative Tribunal and he would take all other alternative steps, administrative and judicial, to avoid this proceeding being dealt with by the High Court. On the same day, he also addressed a letter (An-nexure-15) to the governor, purporting to be a representation, with a prayer to direct the High Court to forward the appeal withheld by it. (xiv) On 14-5-72 the contemner addressed a letter (Annexure16)direct to the Governor, purporting to be a representation, for referring the departmental proceeding to the Administrative tribunal. A copy of this letter was sent to the Registrar, High court, with the remark:
"as the Honourable Court are likely to withhold such petitions, this is submitted direct with copy to the honourable Court for information. The Honourable court may be pleased to send their comments on this petition to the Governor. " (xv) On 22-5-72 the contemner addressed a letter (Annexure14)to the Registrar intimating him that he would not submit any explanation to the charges framed until his representation to the Governor was 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 stated in that very letter that he cannot wait for the permission of the high Court for leaving the headquarters. On 3-7-72 notice of contempt was issued to the contemner by the Registrar of the High Court under orders of the Full Court.
(3.) IN the two show-cause petitions, the contemner stated his defence as follows: the various letters addressed by the contemner referred to in the notice are admitted but it is pleaded that contents thereof do not amount to contempt of court. The impugned averments, according to him, were made with the sole object of stating the facts before his higher authorities in support of his contentions in the appeals and petitions and that those averments are based on truth, as honestly believed by the contemner, and were absolutely necessary for the purpose, and the contemner bona fide feels that he is legally entitled to express them. He denied the charge that he committed contempt under a garb or camouflage of filing appeals and petitions. He further stated that the impugned acts, conduct and writings mentioned in the notice referred to the High Court only on its administrative side and not to the Court or the equivalent Citation: individual Judges on the judicial side. According to him, there is no contempt when it is of such a nature that it does not substantially interfere or tend to interfere with due course of justice which means administration by a court of law on its judicial side. He prayed that the contempt proceeding should be dropped and the case should be heard first on the question of maintainability.;