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THE HIGH COURT OF ORISSA AT CUTTACK

W.P. (C) No. 9958 of 2024

Lalit Kumar Dash ……. Petitioner

- Versus -

State of Odisha and others ……. Opposite Parties

For the Petitioner : Mr. S.S. Rao, Senior Advocate, being

assisted by Mr. B. Mohanty, Advocate

For the Opp. Parties : Mr. Debaraj Mohanty, AGA (for O.P. No.1)

Mr. Subir Palit, Sr. Advocate being assisted

by Mr. D.R. Bhokta, Empaneled Counsel

(for O.P. Nos. 2 to 4)

CORAM:

THE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK

AND

THE HONOURABLE MR. JUSTICE SIBO SANKAR MISHRA

Date of Hearing : 28.01.2026 & 21.05.2026

Date of Judgment : 27.05.2026

1. Integrity is not an ornamental virtue in public life; it is the structural

steel that holds an institution upright. As Aristotle reminds us that

character is not an accident of birth but the cumulative result of

repeated choices. “Men acquire a particular quality by constantly

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acting in a particular way.” Integrity, then, is not proclaimed, it is

practiced. It is forged in the quiet consistency of conduct and in the

administration of justice; this virtue assumes a heightened

significance, for every act or omission by a public servant

reverberates through the rights, liberties, and faith of the citizen.

The caution voiced by Warren Buffett is equally instructive as

he says “In looking for people to hire, you look for three qualities:

integrity, intelligence, and energy. And if they don't have the first,

the other two will kill you.” When integrity is absent, intelligence

and energy do not redeem but endanger. In the judicial ecosystem

where power is exercised not through force but through legitimacy,

this warning acquires constitutional gravity. Thus, integrity is not

merely one virtue among many, it is the condition precedent to the

meaningful exercise of all others.

This case presents a difficult and nuanced intersection of duty,

obedience and moral agency. It raises a question that has long

engaged both law and ethics: can a public official, acting under the

command of a superior, claim shelter under “good faith” when the

act itself occasions harm or contravenes legal or procedural

propriety ? The doctrine of obedience to superior’s orders, while

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recognized in limited spheres, has never been an absolute defense in

a system governed by the rule of law. The judiciary, as the custodian

on the qui vive, must insist that good faith is not a written formula to

ward off scrutiny. It is a substantive standard that is anchored in

reasonableness, due diligence, and fidelity to law. An act done in

good faith must be preceded by a bona fide effort to ascertain

legality, to weigh consequences, and to avoid manifest illegality.

At the same time, the Court is not unmindful of the hierarchical

realities within which officials operate. The pressures of command

structures, the asymmetry of power, and the immediacy of

operational demands can blur the line between duty and discretion. It

would be unjust to judge every subordinate with the detachment of

hindsight, ignoring the context in which decisions were made. The

law, therefore, calibrates its expectations and it does not demand

heroism in every case, but it does require honesty of purpose,

reasonable care, and the courage to question what is evidently

wrong.

This Court, therefore, approaches the present matter with a dual

commitment: to uphold the principle that no individual is above the

law, and to recognize that the law must be applied with a humane

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appreciation of context. The inquiry is not merely whether the act

was done, but whether it was done with the integrity that the office

demands.

2. The facts in terse leading to the controversy in the present case

commenced with the meeting of the Departmental Promotion

Committee (DPC) held on 17.12.2019 under the High Court of

Orissa (Appointment of Staff and Conditions of Service) Rules,

2019, for consideration of promotion to the posts of Additional

Deputy Registrar (J&E). Applying the criterion of “merit-cum-

suitability with due regard to seniority” under Rule 38(1), the DPC

found only two officers suitable and accordingly recommended their

promotion. Thereafter, on 23.12.2019, the DPC again convened for

considering promotion of Secretaries to the post of Assistant

Registrar-cum-Senior Secretary and recommended six employees

for such promotion. The recommendations of the DPC were

approved by the then Hon’ble Chief Justice Mr. Justice K.S. Jhaveri

and promotion notifications were issued on 24.12.2019.

Subsequently, during the tenure of Hon’ble the then Acting

Chief Justice Kumari Justice S. Panda, the earlier promotion orders

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dated 24.12.2019 were recalled on 21.01.2020 and fresh promotions

were granted by invoking the exceptional power under Rule 38(10)

of the 2019 Rules without convening a fresh DPC. Certain officers,

who had not been recommended by the DPC, submitted

representations before the then Acting Chief Justice. Though some

of such representations were rejected, promotions were nevertheless

granted to certain officers by invoking Rule 38(10). The

representation of another officer remained pending by order dated

17.02.2020 due to pendency of a writ petition before this Court.

During May, 2020, representations were submitted by the

aggrieved employees seeking restoration of their earlier promotions.

At the relevant time, the present petitioner was functioning as the

Registrar (Judicial) of the Court. According to the petitioner, he

placed the relevant Administrative File along with corresponding

papers and detailed notes before Hon’ble the then Chief Justice Mr.

Justice Mohammad Rafiq explaining the procedural history and

developments concerning the promotions and recall thereof. Upon

consideration of the matter and in exercise of powers under Rule 52

of the 2019 Rules, Hon’ble the then Chief Justice Mr. Justice

Mohammad Rafiq constituted a Special Committee on 30.07.2020

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consisting of Hon’ble Justice S.K. Mishra, Hon’ble Justice C.R.

Dash and Hon’ble Justice Biswajit Mohanty for examining the

issues arising out of the promotion controversy.

On 31.07.2020, the DPC placed two separate notes before

Hon’ble Chief Justice Mr. Justice Mohammad Rafiq seeking

clarification regarding interpretation of the Rules and principles

governing promotions. Consequently Hon’ble Chief Justice Mr.

Justice Mohammad Rafiq formulated several queries and referred

the same to the aforesaid Special Committee for its assistance and

recommendations. The petitioner’s specific stand throughout has

been that, after submission of the file and documents before Hon’ble

the then Chief Justice and constitution of the Special Committee, the

concerned file remained beyond his control and custody.

The petitioner was thereafter relieved from the post of Registrar

(Judicial) on 14.02.2021 upon his transfer and posting as District

Judge. Since the Special Committee had not finalized the issues

referred to it and several employees were nearing to retirement

without consideration for promotion, the then Hon’ble Chief Justice

Dr. Justice S. Muralidhar directed dissolution of the Special

Committee and recall of all files pending before it. Pursuant thereto,

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on 17.04.2021, the then Registrar (Judicial) submitted a report

alleging that pages bearing Nos.116/C to 152/C of File No. XIX-

23/1998 relating to promotion matters were missing.

Following the above development, explanations were sought

regarding the alleged missing documents. A statement of Sri

Sachidananda Dalai, Senior Grade Typist attached to the Registrar

(Judicial), was also recorded, wherein he stated that certain

correspondence pages had been separated and handed over to the

petitioner during 2020. Thereafter, on 05.05.2021, Hon’ble Chief

Justice Dr. Justice S. Muralidhar sought clarification regarding the

procedure adopted in recommending promotions under Rule 38(10).

On 08.05.2021 the then DPC Committee submitted a detailed report

expressing concern over disappearance of the DPC minutes and

certain related correspondence documents from the official records.

Consequently, departmental proceedings were initiated against

the present petitioner alleging gross misconduct, dereliction of duty,

administrative indiscipline and failure to maintain integrity and

honesty. In the enquiry proceeding, one witness, namely Sri Suman

Kumar Mishra, Registrar (Judicial) of the Court, was examined and

Exts.1 to 29 were marked on behalf of the Department. Upon

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conclusion of the enquiry, the Enquiry Officer submitted report vide

Annexure-5 holding all charges proved against the petitioner,

primarily on the grounds that the petitioner remained silent

regarding the alleged missing documents and had improperly

suggested invocation of Rule 38(10) while placing notes before

Hon’ble the then Acting Chief Justice.

Based solely upon the findings of the Enquiry Officer, the

Disciplinary Authority imposed punishment upon the petitioner

under Rule 13(vi-A) of the OCS (CCA) Rules, 1962 by directing

withholding of two increments cumulatively.

Thus, the present writ petitioner assails the disciplinary

proceeding (hereinafter referred to as “D.P.”) culminating in a

finding of guilt and imposition of penalty in the form of withholding

of two increments. The petitioner Lalit Kumar Dash, an officer

belonging to the Orissa Superior Judicial Service, has approached

this Court seeking exoneration from all the charges by quashing the

final order of punishment dated 23.02.2023 in D.P. No.04. of 2021.

It is further prayed that the entire disciplinary proceeding be

declared illegal and perverse in the eyes of law, and that the

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petitioner be extended all consequential service benefits attached to

the Super Time Scale - 2022.

3. Heard Mr. S.S. Rao, learned Senior Advocate appearing for the

petitioner; Mr. Debaraj Mohanty, learned Additional Government

Advocate for the State - Opposite Party No.1; and Mr. Subir Palit,

learned Senior Advocate appearing along with Mr. D.R. Bhokta,

learned Empaneled Counsel for Opposite Parties No.2 to 4.

Submissions on behalf of the Petitioner

4. Mr. Rao, learned Senior Counsel appearing on behalf of the

petitioner, assailed the impugned order of punishment on the ground

that the same is founded entirely upon the enquiry report, which

itself is vitiated by perversity, misreading of evidence and

conclusions unsupported by the materials on record. The enquiry

officer proceeded on the erroneous assumption that the petitioner

had admitted the “missing” of documents from File No. XIX-

23/1998, although no such admission was ever made. On the

contrary, the consistent stand of the petitioner was that the

correspondence papers containing pages 116/C to 152/C had been

placed before the then Hon’ble Chief Justice along with the main file

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and thereafter the matter was referred to the Special Committee

constituted by the then Chief Justice, Justice Mohammad Rafiq. The

petitioner specifically stated that the file might have remained with

the Special Committee or elsewhere after being transmitted pursuant

to the directions of the Hon’ble Chief Justice. Therefore, the very

foundation of the enquiry report is based on presumptions and not on

proved facts.

Mr. Rao submitted that the department failed to establish

exclusive custody of the alleged missing documents with the

petitioner. The records themselves disclose that after constitution of

the Special Committee, the file had moved beyond the control of the

petitioner. Ext.7 containing the noting of Hon’ble the then Chief

Justice Dr. S. Muralidhar directing recall of the files from the

Special Committee clearly indicates that the records were being

handled by others after the petitioner’s relieve on 14.02.2021.

Significantly, the main file allegedly containing missing pages was

never produced during enquiry and no movement register or record

was exhibited to establish where the file remained from May 2020

till April 2021. In absence of proof regarding actual custody, the

charge of misconduct cannot be sustained merely on suspicion.

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Mr. Rao further contended that the enquiry officer wrongly

shifted the burden of proof upon the delinquent officer. The

observation in paragraph 33 of the enquiry report that the petitioner

failed to prove his innocence clearly demonstrates that the enquiry

proceeded on an impermissible standard contrary to the settled

principles governing departmental proceedings. The burden always

lies upon the department to establish misconduct on the basis of

legally acceptable evidence. The sole witness examined by the

department admitted during cross-examination that notings

mentioning “as per kind direction of Your Lordship” are ordinarily

recorded only when directions are already issued by the Hon’ble

Judge concerned, and further admitted that approval of such notes by

the competent authority implies application of mind by such

authority. The witness also candidly admitted that the petitioner

derived no personal benefit from the alleged missing papers and that

the relevant documents were merely copies.

Mr. Rao also submitted that the charge relating to

recommendations under Rule 38(10) of the High Court of Orissa

(Appointment of Staff and Conditions of Service) Rules, 2019 is

wholly unsustainable. The exercise of powers under Rule 38(10) lies

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exclusively within the prerogative of the Hon’ble Chief Justice

/Acting Chief Justice and any note prepared by the Registrar

(Judicial) was merely part of the administrative processing of files.

There exists no statutory prescription governing the exact format or

content of administrative notes. The petitioner merely recorded

suggestions “as per the kind direction of Your Lordship”, which

practice stands admitted by the departmental witness himself. Thus,

in absence of any rule violation, mala fide intention, personal gain or

dishonest conduct, the findings of “gross misconduct”,

“administrative indiscipline” and “failure to maintain integrity” are

wholly disproportionate, arbitrary and unsupported by evidence. The

petitioner accordingly prays that the enquiry report, consequential

punishment order and denial of service benefits be quashed.

Submissions on behalf of the Opposite Parties

5. Mr. Palit, learned Senior Counsel appearing for the Opposite Parties

submitted that the petitioner, being a senior judicial officer holding

the sensitive post of Registrar (Judicial), was expected to maintain

the highest standards of integrity, probity and administrative

discipline. The materials on record clearly establish that the

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petitioner himself caused separation of pages 116/C to 152/C from

the main administrative file and got them kept in a separate fly-leaf

folder through Sri Sachidananda Dalai. The petitioner has admitted

such separation in his explanation. However, despite allegedly

handing over the documents separately, he never recorded such fact

in any note-sheet, never informed any superior authority regarding

non-return of the documents, never initiated reconstruction of the

file and never informed his successor upon transfer. His silence

continued until issuance of show-cause notice. Such conduct itself

constitutes grave dereliction of duty and administrative indiscipline

on the part of the petitioner.

Mr. Palit contended that the petitioner deliberately ignored the

statutory framework governing promotions under the 2019 Rules

and facilitated exercise of extraordinary powers under Rule 38(10)

without placing the matter before the Departmental Promotion

Committee. Due to such improper notings and suggestions, several

employees previously found unsuitable were promoted, while

eligible candidates including reserved category candidates entitled

under the Orissa Reservation of Vacancies Act and Rules, were

ignored. The petitioner cannot escape responsibility by merely

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stating that the notes were recorded “as per direction”. Being an

experienced officer who had served in multiple capacities within the

High Court Registry, he was fully aware of the governing rules and

constitutional requirements relating to reservation and promotions.

Mr. Palit further submitted that the scope of judicial review in

disciplinary matters under Articles 226 and 227 of the Constitution

of India is extremely limited. The writ court cannot re-appreciate

evidence as an appellate authority unless the findings are wholly

perverse or based on no evidence. He placed reliance upon decisions

such as Union of India v. H.C. Goel, reported in 1963 SCC OnLine

SC 16, State of Andhra Pradesh v. S. Sree Rama Rao reported in

1963 SCC OnLine SC 6, and State of Andhra Pradesh v. Chitra

Venkata Rao, reported in (1975) 2 SCC 557, to contend that

adequacy or sufficiency of evidence cannot be examined in writ

jurisdiction once there exists some evidence supporting the findings.

The enquiry officer considered the explanations, documents and

testimony on record and returned a reasoned finding holding all

charges proved. The disciplinary authority thereafter independently

examined the matter and imposed a proportionate penalty under

Rule 13(vi-A) of the OCS (CCA) Rules, 1962.

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The learned senior counsel submitted that the conduct of the

petitioner strikes at the institutional integrity of the High Court

establishment itself. Administrative records of the High Court are

sacrosanct, and removal or separation of records without proper

recording cannot be treated lightly. The petitioner’s conduct in

remaining silent regarding the missing records, coupled with his

improper handling of promotion matters affecting the rights of

employees and reservation principles, justified initiation of

disciplinary proceedings and imposition of major punishment. The

impugned order is therefore stated to be lawful, reasoned,

proportionate and necessary to preserve public confidence in the

administration of justice and institutional discipline within the High

Court’s Establishment.

ANALYSIS

6. The factual matrix of the case as appears from record is that the

Petitioner, who is an officer of the rank of Odisha Senior Judicial

Service, joined Odisha Judicial Service in the year 1997, and after

several appointments at different levels and promotions, he joined

the Registry of this Court initially in August 2002 as Assistant

Registrar (Administration) and also worked with the Registry on

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several other posts at different times. Subsequently, on 13.01.2020

he joined as Registrar (Judicial) in the Registry of this Court. Prior

to that, since 26.08.2019 he also served as Registrar (Vigilance) in

the Registry of the High Court. Subsequently, the petitioner was

relieved from the post of Registrar (Judicial) on 14.02.2021, and

thereafter while he was serving elsewhere in another capacity, he

was served with a notice seeking an explanation regarding the

missing of documents from page Nos. 116/c to 152/c in the

Administrative File No.XIX-23/1998. Pursuant to such notice, an

explanation / reply was submitted by the petitioner, which was found

not satisfactory and, in lieu of that, a Departmental Proceeding (D.P.

No.04. of 2021) was initiated. In the Articles of Charge in the D.P.

the petitioner was charged with irregularities and illegalities

contemplating enquiry under Rule 3 of the Odisha Government

Servants Conduct Rules, 1959. The Articles of Charge was on the

following counts:

a) Gross misconduct;

b) Dereliction of duty;

c) Administrative indiscipline while dealing with administrative

records;

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d) Failure to maintain absolute integrity and honesty.

7. Simultaneously, allegations were raised against the petitioner that

while placing notes before the then Hon’ble Acting Chief Justice in

matters of promotion of Secretaries and Personal Assistants, he

suggested invocation of Rule 38(10) of the High Court of Orissa

(Appointment of Staff and Conditions of Service) Rules, 2019

without adherence to the normal procedure contemplated under Rule

38(1) and without reference to the Departmental Promotion

Committee.

8. The inquiry culminated in a report holding the petitioner guilty.

Accepting the inquiry report, the disciplinary authority imposed the

punishment of withholding of two increments with cumulative effect

by order dated 23.02.2023. The said order is reproduced herein for

ready reference:-

“With reference to your Confidential Letter No. 52

dtd.07.02.2023 on the above subject, I am directed

to inform you that the Court on considering the

representation of Sri Lalit Kumar Dash, Ex-

Registrar (Judicial), Orissa High Court, Cuttack at

present Judge, Family Court, Bhawanipatna and

after examining the findings of the Enquiring

Authority along with all the relevant documents and

the materials on record in D. P. No.4/2021, the

Court have been pleased to award Sri Dash with the

major penalty of withholding of two increments with

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cumulative effect as provided in Rule 13(vi-A) of the

O.C.S(C.C.A) Rules, 1962.”

9. Having heard learned counsel for the parties and upon perusal of the

pleadings, enquiry report, evidence adduced in the disciplinary

proceeding and the impugned order of punishment, the following

principal issues arise for consideration:

(i) Whether the finding regarding alleged missing of pages

from 116/C to 152/C of File No. XIX-23/1998 and the consequential

attribution of misconduct to the petitioner is sustainable in law and

based on legally admissible evidence ?

(ii) Whether the charge relating to the petitioner placing notes

before the Hon’ble Acting Chief Justice recommending exercise of

power under Rule 38(10) of the High Court of Orissa (Appointment

of Staff and Conditions of Service) Rules, 2019 constitutes

misconduct, dereliction of duty, or lack of integrity so as to warrant

disciplinary punishment ?

Apart from the above, ancillary issues relating to vagueness of

charges, shifting of burden of proof, absence of mala fides, and

proportionality of punishment also arise for consideration.

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ISSUE NO. I

Whether the findings regarding missing documents and

administrative indiscipline are sustainable ?

10. Before adverting to the facts, it is necessary to note the peculiar

nature of the office of Registrar (Judicial) in a High Court

Establishment. Such officer does not function as an autonomous

executive authority. The office operates within a highly structured

constitutional hierarchy where administrative notes are often

prepared and processed in aid of decisions of Hon’ble Judges,

particularly the Hon’ble Chief Justice. Institutional discipline,

confidentiality and obedience to administrative directions form

integral features of such office.

11. The foundational allegation against the petitioner is that while he

was functioning as Registrar (Judicial) of the Court, pages 116/C to

152/C of the concerned Administrative File went missing and that,

despite knowledge thereof, he remained silent and failed to inform

the authorities or reconstruct the file. The Enquiry Officer has

proceeded to hold that the petitioner, being custodian of the file, was

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fully aware of the missing documents and deliberately suppressed

the fact.

12. However, on a careful scrutiny of the materials available on record,

this Court finds that the very substratum of the charge suffers from

serious evidentiary deficiencies. Firstly, the original file allegedly

containing missing pages was never produced during the enquiry

proceeding. Neither the movement register nor any

contemporaneous record demonstrating exclusive custody of the file

with the petitioner from May 2020 till February 2021 was brought

on record. In absence of production of the primary record itself, the

conclusion that the documents were actually missing and that such

disappearance occurred during the exclusive custody of the

petitioner rests substantially on assumptions.

13. The petitioner’s consistent stand, right from his explanation under

Annexure-4, has been that pursuant to directions of Hon’ble the then

Chief Justice Md. Rafiq, the relevant correspondence pages were

separated and produced before His Lordship along with the main file

for consideration of representations concerning promotions. The

petitioner specifically stated that after Hon’ble the then Chief Justice

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constituted a Special Committee and formulated queries, only the

note prepared by His Lordship was returned to him for

communication to the Committee Members and the file itself was

not thereafter returned to him prior to his transfer.

14. This explanation finds substantial corroboration from the

contemporaneous notings and surrounding circumstances. Ext.6

demonstrates constitution of the Special Committee by Hon’ble the

then Chief Justice Mr. Md. Rafiq after perusal of the records. Ext.7

dated 26.04.2021 by Hon’ble the then Chief Justice Dr. S.

Muralidhar specifically directed recall of files pending with the

Special Committee. The very tenor of the said noting indicates that

the files had remained in circulation beyond the tenure of the

petitioner as Registrar (Judicial). Significantly, the subsequent

Registrar (Judicial) on 17.04.2021 noted that pages were missing,

which itself establishes that after the petitioner’s relieve on

14.02.2021, the file had already passed through other hands.

15. The evidence of the sole departmental witness, namely PW-1, also

materially weakens the departmental case. In paragraph 32 of his

cross-examination, PW-1 candidly admitted that the queries

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formulated by Hon’ble the then Chief Justice Md. Rafiq would not

have been possible without in-depth study of the relevant papers

alleged to be missing. In paragraph 36, he admitted that he could not

say whether the petitioner derived any personal benefit from the

alleged missing documents. In paragraph 33, it was also admitted

that the documents were merely copies extracted from

correspondence records and personal files. Therefore, not only there

is absence of proof of motive or gain, but there is also no evidence

of actual prejudice or administrative inconvenience caused due to

the alleged disappearance of papers. Extract of the above deposition

is reproduced herein for ready reference:-

“32. It is a fact that in Ext.7 under paragraph-7

some queries of Hon’ble the then Chief Justice

formulated in the notes dated 11.08.2020 have been

mentioned. I cannot say if those queries are not

possible without in-depth study of relevant pages

alleged to have been missing.

33. It is a fact that the documents alleged to have

been missing were part of the correspondence

portions of the file and those were matters

pertaining to promotion of Secretaries to A.R.-cum-

Sr. Secretaries.

xxxxx

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36. I cannot say if Sri L.K. Dash has not gained any

personal benefits from the meeting of the relevant

pages.”

Most importantly, the Enquiry Officer appears to have

proceeded on an erroneous presumption that the petitioner admitted

the documents to be missing. No such admission is discernible from

the petitioner’s explanation or from the evidence on record. Rather,

the petitioner specifically asserted that the file may have remained

with the Special Committee after having been placed before Hon’ble

the Chief Justice. The Enquiry Officer nevertheless proceeded to

hold that the petitioner intentionally suppressed the fact and failed to

record a note regarding missing of documents. Such conclusion is

not based on direct evidence but on inferential assumptions.

16. In the present case, there is complete absence of evidence

demonstrating:

(a) the precise stage at which the documents allegedly disappeared;

(b) that the petitioner retained exclusive custody of the records;

(c) that the petitioner removed the documents for any ulterior

purpose;

(d) that any prejudice was actually caused by the administration; or

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(e) that the petitioner gained any benefit whatsoever.

17. The Enquiry Officer has, in effect, shifted the burden upon the

petitioner to prove his innocence. Paragraph 33 of the enquiry report

specifically records that the petitioner failed to prove his innocence.

Such approach is fundamentally contrary to the settled principles

governing disciplinary proceedings. The burden always lies upon the

department to establish misconduct on the basis of evidence. Failure

of the delinquent to conclusively establish innocence cannot become

a substitute for proof of guilt. Relevant part of paragraph 33 of the

enquiry report reads as follows:-

“Therefore, it is held that the grounds taken in his

defence is no way helpful to prove the innocence of

the delinquent officer on this count. Accordingly, it

is held that the department has well established its

case and brings home the charge as leveled against

the delinquent officer and therefore, he is held

guilty of misconduct and dereliction of duty having

failed to maintain absolute integrity and honesty.”

18. This Court is therefore constrained to hold that the findings on

Charges relating to administrative indiscipline, misconduct and

failure to maintain integrity on account of alleged missing

documents are vitiated by non-consideration of material evidence,

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reliance on presumptions, and shifting of burden of proof. Hence,

it’s a case of no evidence.

ISSUE NO. II

Whether the petitioner committed misconduct by placing notes

suggesting exercise of Rule 38(10) ?

19. The second charge relates to the petitioner allegedly suggesting

invocation of Rule 38(10) of the 2019 Rules before Hon’ble the then

Acting Chief Justice for promotion matters, bypassing ordinary

procedures and thereby enabling promotions of allegedly ineligible

persons. At the outset, it must be noted that Rule 38(10) confers

extraordinary powers upon Hon’ble the Chief Justice. The final

decision regarding invocation of such power indisputably rested

with Hon’ble the Acting Chief Justice and not with the petitioner.

The petitioner, as Registrar (Judicial), merely processed the files and

placed notes before the competent constitutional authority.

The Notes in a Departmental file do not have the sanction of

law to be an effective order. It is trite to state that the notings by an

officer is an expression of his view point on the subject, which is

meant only for internal use and for consideration of the other

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officials of the Department and for the benefit of the final decision-

making authority. Therefore, internal notings are not meant for

outside exposure. Peculiarity in the present case the delinquent has

prepared the note on the direction of Hon’ble the then Acting Chief

Justice. The petitioner was not even allowed to express his opinion

and his discretion has been restricted in view of the direction of his

superior. If he would not have obeyed the direction of the superior

to put the note as was directed by Her Lordship, that would have

been insubordination on his part. In such catched 22 situations, the

note appears to have been prepared by the delinquent. Hon’ble

Supreme Court, taking note of various judgments on this point in the

matter of Mahadeo and others Vs. Sovan Devi and others, 2022

SCC Online SC 1118, has been pleased to encapsulate the law, inter

alia, observing hereunder –

“24. A noting recorded in the file is merely a

noting simpliciter and noting more. It merely

represents expression of op0inion by the particular

individual. By no stretch of imagination, such noting

can be treated as a decision of the Government. Even

if the competent authority records its opinion in the

file on the merits of the matter under consideration,

the same cannot be termed as a decision of the

Government unless it is sanctified and acted upon by

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issuing an order in accordance with Articles 77(1)

and (2) or Articles 166(1) and (2). The noting in the

file or even a decision gets culminated into an order

affecting right of the parties only when it is expressed

in the name of the President or the Governor, as the

case may be, and authenticated in the manner

provided in Article 77(2) or Article 166(2). A noting

or even a decision recorded in the file can always be

reviewed/reversed/ overruled or overturned and the

court cannot take cognizance of the earlier noting or

decision for exercise of the power of judicial review.”

Viewing the evidence of this case in the prism of law would

be necessary to appreciate under what circumstances such noting

was prepared and placed by the petitioner before the Hon’ble ACJ.

The sole departmental witness categorically admitted in paragraphs

28, 29 and 42 of his deposition that expressions such as “as per kind

direction of Your Lordship” are routinely mentioned when prior

directions have already been received from the authority. The

witness further admitted that approval of the note by the authority

implies application of mind by such authority. It was also admitted

that in Ext.1 the petitioner had not independently suggested recall or

cancellation of promotion orders and that such decisions were taken

by Hon’ble the Acting Chief Justice on her own. The said

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paragraphs of the deposition are reproduced herein for ready

reference:-

“28. It is a fact that Ext.1 reveals that Sri L.K. Dash

placed the records before Hon'ble A.C.J. as desired by

Her Ladyship. It is a fact that in Ext.1 Sri L.K. Dash

has not given any suggestion for recall/cancellation of

the promotion order. It is a fact that Ext.1 reveals that

the order of recall of the promotion orders was made

by the Hon'ble ACJ on her own.

29. It is a fact that in the suggestion portions of

Exts.2, 3 and 4 Sri L.K. Dash has mentioned "as per

the kind direction of Your Lordship". It is a fact that

usually such words like "as per the direction of Your

Lordship" are mentioned in the notes by the Registrars

when instructions are already given to them on those

matters. It is a fact that approval of a note by the

authority implies that the authority has applied his/her

mind on the matter concerned.

xxxxxx

42. It is a fact that in the suggestion portion of Ext.29

Sri L.K. Dash has mentioned "as per the kind direction

of Your Lordship".”

20. Therefore, the allegation that the petitioner independently

engineered or manipulated the exercise of Rule 38(10) stands

unsupported by evidence. No rule, circular or administrative

instruction has been brought on record prescribing any mandatory

format of noting or prohibiting the Registrar from placing proposals

upon receiving directions from the competent authority.

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21. The enquiry officer has repeatedly observed that the petitioner

displayed a “cavalier attitude” and shifted blame upon Hon’ble the

then Acting Chief Justice. This Court is unable to sustain such

reasoning. The petitioner’s defence was not an attempt to shift blame

but a factual assertion regarding the procedural manner in which the

files were processed. Once the departmental witness himself

admitted the prevalent administrative practice and the fact that

notings were made pursuant to the directions of the authority, the

petitioner’s explanation cannot be termed dishonest or unethical.

22. The disciplinary proceeding does not disclose any material

demonstrating mala-fide intention, personal gain, corrupt motive, or

extraneous consideration on the part of the petitioner. Merely

because certain promotion decisions subsequently became

controversial or were reconsidered cannot automatically render the

officer processing the file guilty of misconduct. In administrative

law, there exists a clear distinction between an erroneous

administrative decision and culpable misconduct. Unless the conduct

of the officer is shown to be actuated by oblique motive, deliberate

violation of rules, or dishonest intention, disciplinary liability cannot

be fastened merely because a different administrative view

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subsequently prevailed. The records reveal that the petitioner had

merely processed the files in his capacity as Registrar (Judicial) and

placed the relevant notes before the Hon’ble the Acting Chief

Justice. The evidence of PW-1 itself establishes that expressions

such as “as per kind direction of Your Lordship” were routinely

employed where prior directions had already been communicated by

the competent authority. The witness further admitted that approval

of the note by the authority signifies application of mind by such

authority. Therefore, once the competent constitutional authority

independently considered the matter and exercised powers under

Rule 38(10), the entire burden of the resultant decision could not

legally be shifted upon the petitioner merely because he processed

the file.

It is also significant that no statutory provision, administrative

circular or binding guideline was produced before the enquiry

officer to demonstrate that the petitioner was prohibited from

placing such notes or that the format adopted by him amounted to

misconduct. In absence of a clearly established norm having been

violated, the finding of dereliction of duty becomes unsustainable. A

disciplinary proceeding cannot proceed on generalized notions of

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expected conduct divorced from identifiable legal or procedural

obligations. This Court further finds that the enquiry officer

repeatedly employed expressions such as “cavalier attitude”,

“shifting of blame”, and “brazen attempt to suppress truth”, without

correlating such observations to any substantive evidence on record.

Departmental findings affecting reputation and integrity of a senior

judicial officer cannot rest on rhetorical inferences or moral

impressions. Findings in disciplinary proceedings must be founded

upon objective materials capable of establishing misconduct on the

touchstone of probabilities. In the present case, even such threshold

is not satisfied. The evidence led by the department does not

establish that the petitioner acted independently, manipulated

records, fabricated recommendations, suppressed any statutory

provision, or derived any advantage from the disputed promotions.

On the contrary, the materials disclose that the decisions in question

emanated from the exercise of powers by Hon’ble Chief Justices at

different stages and under differing administrative perceptions. The

Court is therefore of the considered opinion that the second limb of

charges relating to invocation of Rule 38(10), alleged irregular

Page 32 of 34

recommendations, and purported failure to maintain integrity is

equally unsustainable in law.

23. The concept of good faith assumes relevance in such circumstances.

Good faith in administrative law and service jurisprudence does not

necessarily require infallibility of judgment. It requires honesty of

purpose, absence of mala fides and bona fide discharge of official

duty. A subordinate officer acting transparently under recorded

directions of superior authority, without concealment or personal

benefit, ordinarily acts in good faith unless the directions are

manifestly illegal or actuated by corrupt motive known to the

subordinate officer.

In the present case, the petitioner did not conceal the source

of the directions. On the contrary, he openly incorporated in the

official note that the actions were being taken under the directions of

the Hon’ble Acting Chief Justice. Such conduct militates against any

inference of covert or dishonest intent.

24. Another significant aspect is proportionality. The promotions, which

were later found irregular, were ultimately recalled and status quo

ante restored. No irreversible prejudice survived. The petitioner had

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rendered long years of service without adverse record. In absence of

any finding of corruption, personal gain or deliberate manipulation,

the imposition of major penalty with cumulative effect appears

disproportionate.

25. Judicial review over disciplinary proceedings is admittedly limited.

This Court ordinarily does not re-appreciate evidence as an appellate

authority. However, where findings are based on misreading of

evidence, omission of vital materials, or conclusions which no

reasonable authority could have arrived at, interference becomes

inevitable.

26. Consequently, this Court is of the considered view that the

impugned order of punishment dated 23.02.2023 under Annexure-7

cannot sustain the scrutiny of law. The enquiry report under

Annexure-5 and the consequential order of punishment under

Annexure-7 are hereby quashed. The Opposite Parties are directed to

restore all consequential service benefits in favour of the petitioner

at the earliest considering the fact that the petitioner is retiring from

service on 31.07.2026 on attaining the age of superannuation at the

age of 60 years. This Court sincerely believe and expect that all

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authorities concerned shall do well to see that the benefit of this

judgment shall enure to the petitioner before he demits the office on

superannuation in the month of July, 2026.

27. Accordingly, the Writ Petition is allowed.

(Manash Ranjan Pathak)

Judge

(Sibo Sankar Mishra)

Judge

The High Court of Orissa, Cuttack.

Dated the 27

th

May, 2026.

Ashok Jagdev, Secretary &

S.K. Parida, ADR-cum-APS