Holding

The Supreme Court held that the reference was valid without a prior hearing, the allegations did not constitute misbehaviour under Article 317(1), and therefore the Chairman should not be removed.

Summary

The President, on a reference under Article 317(1) of the Constitution, sought a Supreme Court inquiry into allegations of misbehaviour against Dr. H.B. Mirdha, Chairman of the Orissa Public Service Commission, including concealment of his daughters' candidature, alleged threats to members, association with a private coaching centre, and alleged bribery. The Court first ruled that a prior hearing or opportunity to show cause was not required before a reference could be made, and that the reference was sufficiently specific. It then examined whether the three sets of allegations fell within the constitutional definition of "misbehaviour" for removal of a commission member. The Court held that mere error of judgment, negligence, or the absence of a rule requiring declaration of relatives does not constitute misbehaviour, and that the evidence did not establish willful abuse, corruption, or moral turpitude. Consequently, none of the charges were proved and the reference was answered in the negative, leaving the Chairman in office.

Issues considered

Whether a reference under Article 317(1) requires a prior hearing or opportunity to show cause before it is issued.
Whether the reference was vague or insufficiently specific to constitute a valid inquiry.
Whether the alleged concealment of relatives' candidature, alleged threats, alleged association with a coaching centre, and alleged bribery amount to "misbehaviour" within the meaning of Article 317(1).
Whether the principle of withdrawal from a selection committee applies to members of a constitutional Public Service Commission.
Whether the Constitution's definition of misbehaviour, supplemented by Article 317(4), encompasses the conduct alleged against the Chairman.

Legislation cited

Constitution of Indias. Article 124(4), s. Article 317

Subjects

Article 317misbehaviourpublic service commissionnatural justicehearingremoval of chairmanconflict of interestbriberybiasconstitutional law

Judgment

[2008] 15 S.C.R. 1000
...
.--(

A REFERENCE NO. 1 OF 2003
REFERENCE UNDER ARTICLE 317(1) OF THE
CONSTITUTION OF INDIA
IN RE:
UNDER ARTICLE 317(1) OF THE CONSTITUTION OF
B INDIA FOR ENQUIRY AND REPORT ON THE
ALLEGATIONS AGAINST DR. H.B. MIRDHA, CHAIRMAN,
ORISSA PUBLIC SERVICE COMMISSION

NOVEMBER 10, 2008
c [K.G. BALAKRISHNAN, CJ. P. SATHASIVAM
AND J.M. PANCHAL, JJ.]

CONSTITUTION OF /NOIA, 1950:

D Article 317(1) and (4) - Reference for-inquiry and report
as to whether the Chairman, Orissa Public Service
Commission ought, on the ground of misbehaviour, to be
removed from the office -· HELO: Article 317, like Article
124(4), does not define misbehaviour nor does it enumerate
E what acts would constitute misbehaviour except that Clause
(4) of Article 317 makes an improvement in specifying
misbehaviour, namely, being interested in any government
contract - Outside clause (4) of Article 317, it is left to
Supreme Court to determine whether a particular act or
F conduct is of such a nature as to warrant removal of
Chairman/Member on thf:J ground of misbehaviour - Every
act or conduct of error of judgment or negligence by a
constitutional -authority per se does not amount to
misbehaviour- Misconduct implies some degree of mens rea
- Willful abuse of constitutional office, persistent failure to
G
perform duties, willful misconduct in the office, corruption, lack
of integrity or any other offence involving moral turpitude
would be misbehaviour - Judicial finding of guilt of grave
crime is misconduct - In the instant case, none of the charges

H 1000
IN RE: DR. H.B. MIRDHA 1001

leveled against the Chairman stands proved. A

J Public Service Commission - Orissa Civil Services
Examination, 2000 - Charge leveled against Chairman,
OPSC that he made an attempt to conceal that his <;lose
relatives were candidates in the examination - HELD: There B
is no rule and/or order requiring that the Chairman or the
Members of the Commission and employees should give a
declaration as to whether their near relatives are appearing
in the examination - The principle, which requires that a
member of a Selection Committee, whose close relative is C
appearing for selection, should decline to become a Member
of the Selection Committee or withdraw from it leaving it to the
appointing authority to nominate another person in his place
need not be applied in case of a constitutional authority like
the Chairman/Member of the Public Service Commission,
whether of the Union of India or of a State, as no other person D
save a Chairman and/or a Member can be substituted in his
place - Administrative Law - Bias - Rule of necessity.

Administrative Law:
E.
Principle of natural justice - Opportunity of hearing -
HELD: No hearing or opportunity to show cause against
proposed Reference under Article 317(1) of the Constitution
was necessary before making the reference - Constitutio,n of
India, 1950 - Article 317(1).
F
The President of India, in exercise of powers under
Article 317(1) of the Constitution of India, made the
instant Reference for inquiry and report as to whether the
Chairman, Orissa Public Service Commission ought, on
the ground of misbehaviour, to be removed from the G
office.

Preliminary objections as to the maintainability of the
Reference were raised contending that (i) the Reference
was vitiated for non-observance of principle of natural
H
1002 SUPREME COURT REPORTS [2008] 15 S.C.R.

A justice as no hearing of opportunity of showing cause
was given to him by the President before making the
Reference; (ii) the Reference was vague, and (iii) a case
within the meaning of Clause (1) of Article 317 of the
Constitution for proceeding against the Chairman was
B not made out.

In accordance with the directions of the Court, the )..
statement of allegations and charges was filed. ·Briefly
stated the charges against the Chairman were that (1) he
made an attempt to conceal the fact that his close
C relatives, namely, two married daughters, were
candidates in the Orissa Civil Services Examination, 2000,
being conducted by the OPSC and involved himself in the
. process of examination including the process of setting
question papers; (2) he misbehaved with a lady Member
D of the Commission and including her, threatened three ~
Memb~rs of the Commission to launch a tirade against
them and that he was associated with a private coaching
centre providing classes in respect of examinations
conducted by the Commission; and (3) he received bribe
E to favour a candidate in getting her selected as a junior
lecturer. It was agreed by the parties that the Reference
should be decided on the basis of the affidavits on
record.

F Deciding in favour of the Chairman and answering
the Reference in the negative, the Court

HELD: 1. No hearing or opportunity to show cause
against the proposed Reference under Article 317(1).of
the Constitution was necessary before making the
G Reference. [Para 9] [1011-D-E]

2. The Court noticed that the Reference referred to
the complaints annexed thereto wherein the facts
constituting the ground of alleged "misbehaviour" within
H the meaning of Article 317(1) of the Constitution, were
IN RE; DR. H.B. MIRDHA 1003

clearly stated .. Therefore, it could not be said that the A
Reference was vague. [Para 9] (1011-E-F]

3.1. Article 317, like Article 124(4) of the Constitution
of India, does not define misbehaviour nor does it
enumerate what acts would constitute misbehaviour 8
except that Clause (4) of Article 317 ·makes an
improvement in specifying misbehaviour, namely, being
interested in any government contract. Outside Clause (4),
it is left to the Supreme Court to determine whether any
particular act or conduct is of such a nature as to warrant C
removal of the Chairman· or Member on the ground of
'misbehaviour'. Ordinarily bribery, corruption and the like_
should be regarded as such 'misbehaviour'. But there is
no limitation prescribed by the Constitution itself. In
Article 124(4) 'misbehaviour' means wrong conduct or
improper conduct. It has to be construed with reference D
to the subject-matter and the context wherein the term
occurs, having regard to the scope of the Act or the
Statute under consideration. [Para 13] (1016-A~B, F]

3.2. Every act or conduct or error of judgment or E
negligence by a constitutional authority per se does not
amount to misbehaviour. Misconduct implies a creation
of some degree of mens rea by the doer. Willful abuse of
constitutional office, willful misconduct in the office,
corruption, lack of integrity or any other offence involving F
.moral turpitude would be misbehaviour. Judicial finding
of guilt of grave crime is misconduct. Persistent failure
to perform duties or willful abuse of the office would be
misbehaviour. epara 13] (1016-F, G, H]

4.1. There is no rule and/or order requiring that the G
Chairman or the Members of the Commission and
employees should give a declaration as to whether their
near relatives are appearing in the examination. There can
be no doubt that if a selection committee is constituted
for the purpose of selecting candidates on merits and one ,H
1004 SUPREME COURT REPORTS [2008] 15 S,C.R.

A of the members of the selection committee fa closely
related to .a candidate appearing for the seh!ction, it
would not be enough for such member merely to
withdraw from participating in the interview of the
candidate related to him but he must withdraw altogether
B from the entire selection p.rocess and ask the authorities
to nominate another person in his place on the ~;election
committee so that the selections made are not vitiated on
account of reasonable likelihood of bias. (Para 12] (1012-
H; A-C]
c 4.2. The principle, which requires that a member of a
Selection. Committee,· whose close relative is appearing
for selection, should decline to become a Member of the
Selection Committee or withdraw from it leav1ing it to the
appointing authority to nominate another person in his
D place, need not be applied in case of a constiitutional )
authority like the Cha.irman/Member of the Public Service
Commission, whether of the Union of India or bf a State
as no other person save a Chairman and/or a Me'mber can
be substituted in. his place. And it may sometimes
E happen that no other Member is available to take the
place of such Chairman or Member and the fum:tioning
of the Public Service Commission may be affected. [Para
13] (1014-H; 1015-A-C]
4.3. In the instant case, the married daughters of the
F Chairman had withdrawn their candidature before the
examinations were held. They had neither appeared in
the examination nor the Chairman had taken any step' in
selecting any of his two daughters for the Oris~;a Civil
Services. Initially, the Chairman submitted his declaration
G that his two unmarried daughters, who were staying with
him, were not appearing in the Orissa Civil S4~rvices
Examination, 2000. Subsequently his two married
daughters applied for undertaking the examination, but
later they sent a fax message withdrawing their
H applications. Therefore, the Chairman submitted his
IN RE: DR. H.B. MIRDHA 1005

declaration stating that none of his near relations nor any A
person in whom he was interested was an applicant for
the ensuing examination. None of the close relative of the
Chairman appeared for interview and, therefore, no
occasion arose for the Chairman to withdraw from
participation in the interview, etc. On the facts and in the 8
1

circumstances of the case, charge No. 1 that Chairman
of the OPSC, committed misbehaviour by not informing
that his two married daughters were to appear in the
examination is not proved. [Para 12 and 13] [1313-D, G,
H; 1314-A; 1015-D-E; 1017-A] C
5.1. As regards charge no. 2, from the record of the
case it is evident that the appointment of the incumbent
as Chairman of the Commission was not liked by one of
the Members who herself wanted to be the Chairman of
the Commission and, therefore, started behaving in a D
manner to defy the authority of the Chairman. The
atmosphere of the Commission was absolutely vitiated
and the Members of the Commission had approached the
press hitting at the Chairman and criticizing the
functioning of the Commission under his leadership on E
number of occasions. The proceedings of different
meetings of the Commission would indicate that the
Chairman had not acted in a manner so as to
compromise the image, the dignity and the impartiality of
the OPSC . Therefore, the said allegation does not stand F
proved. Further, no credible evidence could be adduced
before this Court that the Chairman of the OPSC, had
been associated with a private coaching centre. Charge
No. 2 levelled against the Chairman is not proved. [Para
12 and 14] [1012-E-F; 1018-C-E] G
5.2. As far as Charge No. 3 is concerned, having
perused the record of the case, the Court finds that even
on preponderance of probability the charge that the
Chairman had accepted the alleged amount as bribery for
favouring the candidate is not established. In the absence H
1006 SUPREME COURT REPORTS [2008] 15 S.C.R.

A of cogent and reliable evidence, this Court finds that
Charge No. 3 levelled against the Chairman of the OPSC.
is not proved. None of the charges levelled against the
Chairman stands proved. [Para 15 and 161 (1018-E; 1019- .
E-G]
B
Special Reference No. 1 of 1983 decided on 17.8.1983,
referred to.

Madan Lal vs. State of J & ~ 1995 (1) SCR 908 = 1995) r-
3 sec 486, referred to.
c
Case Law Reference:
1995 (1) SCR 908 . referred to para 13

ADVISORY JURISDICTION :Reference No. 1 of 2003.
D
Reference under Article 317(1) of the Constitution oflndia.

In Re:

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

Mohan K. Parasaran, A.S.G., (N.P;), Kiran Suri, S.J. Amith,·
Aparna Bhat, Gaurav Agrawal, B.K. Prasad, P. Parmeswaran, >--
Raj Kumar Mehta~ Mragank, N-alini Pal and Kirti Renu Mishra
F . for the appearing parties.

The following Order of the was delivered :

ORDER
G J.M. PANCHAL, J. 1. This is a Reference under Article~ -
317( 1) of the Constitution of India for enquiry and report on the
charges levelled against Dr. H.B. Mirdha, who was Chairman
of the Orissa Public Service Commission.

H 2. The facts giving rise to the Reference are as under:
IN· RE: DR. H.B. MIRDHA [J.M. PANCHAL, J.] 1007

Dr. H.B. Mirdha was appointed as Member of the Orissa A
Public Service Commission ('OPSC' for short) on April 3, 1998.
Later on he took over as Chairman of the OPSC on April 30,
1999. An advertisement inviting applications for the Orissa Civil
Services Examination, 2000 was published in the newspapers
on November 6, 2000. The last date for receipt of the 8
applications was January 31, 2001. The Special Secretary of
the OPSC circulated a declaration to be made by all the
Members including the Chairman and the employees as to
whether any of their near relations or persons they were
'" interested in, were appearing in the examination. The purpose c
was to keep such members or the employees out of the
process of conducting examination in order to ensure
impartiality and fair play. Dr. Mirdha declared on January 8,
2001 that none of his relatives was appearing in the ensuing
examination. Subsequent to above declaration, two married D
daughters of Dr. Mirdha applied on January 31, 2001 for
undertaking the ensuing examination. A meeting of the OPSC
was held on May 10, 2001. The Special Secretary placed a
proposal for condonation of certain deficiencies found in some
of the applications, which were received. The Commission E
deliberated and decision in each case was taken. However, no
information regarding selection of question papers for the
preliminary examination was given by the Chairman to other
members of the Commission. Again in the meeting held on
May 30, 2001 several important points 'were discussed
regarding the modality to be adopted for the selection of F
question papers for the preliminary examination as well as
declaration by the Members for the purpose of maintaining
secrecy and the declaration by the Members and the
employees regarding their close relatives appearing in the
examination. In this meeting, Dr. Mirdha did not offer such G
declaration of interest in respect of his close relatives who were
to appear in the forthcoming examination to be conducted by
the OPSC. The examination of the records indicate that his two
married daughters, namely, Smt. Anuragini Mirdha and Smt.
Sitarani Mirdha had made applications on January 31, 2001 H
1008 SUPREME COURT REPORTS [2008) 15 S.C.R.

A for undertaking the examination and that they had withdrawn
their applications on May 31, 2001 by sending a fax message.
In meeting held on June 2, 2001, Dr. Mirdha had divulged that
his two married daughters were candidates for examination but
that fact was not known to him and as his daughters had
s withdrawn their candidature, there was no bar to his involvement
in the examination process. Mr. Sarkar, Member of the
Commission, had pointed out that withdrawal of candidature by
his daughters did not make any difference and the fact
remained that as Chairman, Dr. Mirdha had involved himself
c with the process of selecting question papers while his
daughters were candidates. Mr.. Mohanty, Member of the
Commission endorsed Mr. Sarkar's view and added that it was
impossible to believe that Dr. Mirdha was not aware of his
da.ughters' candidature. It is alleged that these remarks
D infuriated Dr. Mirdha; who shouted at both the Members in an
uncivilized manner. It was further alleged that on June 5, 2001,
Dr. Mirdha had telephoned Dr. (Mrs.) Ray at her residence and
ex~rted pressure on her to agree to hisnote on issuance of
admission cards but Dr. (Mrs.) Ray had refused to oblige him
and, therefore, on June 7, 2001, Dr. Mirdha had used vulgar
E and vituperative language and threatened to launch tirade
againstthethreeMembers of the Commission. Levelling above
mentioned allegations, the three· members had addressed
repre~entation dated June 11, 2001 to His Excellency the
Governor of Orissa with a request to take action against Dr.
F Mirdha. The Commission was kept in dark regarding the
procedure to. be adopted by the Chairman to settle question
papers and to make a final selection.

3. Dr. Mirdha, while holding the Office of Member and.
G Chairman of the OPSC, which is a full time Office, was
supposed to maintain utter devotion and sincerity to the Office.
It was alleged that an infraction of law and breach of
constitutional duty was committed by him by associating himself
illegally with a private coaching centre at Sambalpur known as
H OAS Coaching Centre, which functioned as a private high
1 IN RE: DR. H.B. MIRDHA [J.M. PANCHAL, J.] 1009
·. .,,.
>-
school known as Budharaja High School at Ainthapalli in A
Sambalpur Town. According to the allegations a retired IAS
Officer Mr. Puma Chandra Padhi was engaged by Dr. Mirdha
and the said Centre thrived because of its connection with Dr.
Mirdha. What was alleged was that it was planned to
accommodate the candidates belonging to the aforesaid 8
coaching centre in the examinations to be conducted by the
J OPSC.

4. Further, a complaint was submitted by Ms. Pranati Patro
on October 27, 2000 against Dr. Mirdha on a serious charge
~

of bribery. According to the said complaint, the complainant had
c'
appeared along with 37 students for being selectedI
to two
posts that were advertised on January 26, 1999 in the subject
of Home Science. Out of 37 students, 10 students were
selected for interview on the basis of written test, in which,
according to the complainant, she had secured the highest D
marks. Ms. Patro was interviewed by the Board consisting of
Dr. Mirdha and others. The interview was held on June 12, 2000
in which Ms. Ajanta Nayak had been selected despite her
having secured the lowest marks in the written test. It was
alleged that the marks awarded in the interview to Ms. Patro, E
who had secured maximum marks in the written test, were
intentionally reduced at the behest of Dr. Mirdha for which,
according to Ms. Patro, Dr. Mirdha had received a sum of
-....(_
Rs.1.5 lacs for favouring Ms. Ajanta Nayak to select her as a
Junior Lecturer in Home Science. i=
5. Keeping in view the above allegations made by Ms.
Patro, a reference was made by the State Government to the
Lokpal, Orissa. The Lokpal in his order dated February 5; 2002
observed that in view of the provisions of Section 21 of the
G
Orissa Lokpal and Lokayuktas Act, 1985, the Lokpal was not
authorized to investigate into the actions taken by Chairman or
a Member of the OPSC .
... 6. On the basis of the representation received, the
Governor of Orissa made an initial reference to the State H
· 1010 SUPREME COURT REPORTS [2008] 15 S.C:R.

A Government to take appropriate action.· After preliminary
enquiry, the State Government, at the level of the Chief Minister, ·
requested the Governor to recommend to His Excellency the
President of India to make reference to the Supreme. Court
under Article 317(1) of the Constitution. The Governor
B requested the State Government to obtain legal opinion on the
question whether on the available material a prima fade case
was made out against the Chairr:nan for action under Article .
317(1) of the ~onstitution. The State Government obtained the
. opinion of the Advocate General and the Law Secretary. They
c opined that there existed a prima facie case for initiating action
against the.Chairman of th.e OPSC Linder Article 317(1) of the
Constitution. Therefore, the State Government reiterated its
earlier request. for action under Article 317(1) of the· ·
Con~titution. The Governor was of the opinion that it was
Jncumberit upon· the Chairman of a State Public Service
0
Commission to· maintain an image, dignity, impartiality and
integrity and that the conduct of Dr. Mirdha prima facie showed
· failure to maintain-absolute integrity and dignity. The 'Governor;
therefore, by letter dated August 23, 2001, recommended to
the Hon'ble the President to make a reference to the Supreme . ·
E Court under Article 317(1) of the. Constitution for necessary-
enquiry into the allegations made against the Chairma.n.

7. The Hon'ble President took into consideration the letter
dated August 23; 2001, addressed by the Governor of Orissa
F to him, as well as reply of DL Mirdha obtained by Governor of
Orissa and other materials. The Hon'ble the President was
satisfied from the material placed before him that a prima facie
case was made out for enquiry into.the first two charges in the
complaint made by the Members of the Commission and the
G charge levelled in. the petition filed by Ms. Patro against the
Chairman of the Commission. Therefore, in exercise of the
powers conferred upon him by Clause ( 1) of Article 317 of the
Constitution the Hon'ble the President referred to the. Supreme
Court of India for enquiry and report as to whether Dr. Mirdha,
•
H Chairman, OPSC ought, on the grounds.of misbehaviour, to be
IN RE: DR. H.B. MIRDHA [J.M. PANCHAL, J.] 1011

" )-
removed from the Office of Chairman of the Commission. The A
Reference received was registered as Reference No. 1 of
2003 under Article 317(1) of the Constitution and notices were
issued to_the interested parties.

· 8. The learned counsel for Dr. Mirdha had raised three
B
preliminary objections to the maintainability of the Reference .
Bri~fly stated they were (i) no hearing or opportunity of showing
.)
cause was given to him by the President before making the
Reference and, therefore, the Reference should be rejected,
• (ii) the Reference was vague, and (iii) assuming the facts stated
in the Reference to be correct, yet a case for proceeding
c
ahead against him within the meaning of sub-Article (1) of
Article 317 of the Constitution was not made .out.

9. After hearing the learned counsel for the parties this
Court, by an order dated March 29, 2005, expressed the D
. opinion that no hearing or opportunity of showing cause against
the proposed Reference under Article 317(1) of the Constitution
was necessary before making the Reference. In view of this
· opinion the first objection raised by Dr. Mirdha was overruled.
The Court had perused the contents of the Reference and the E
accompanying documents. The Court noticed that the
Reference referred to the complaints annexed with Reference
wherefrom the facts, constituting the ground of alleged
"misbehaviour'' within the meaning of Article 317(1) of the
Constitution, were clearly stated. The Court, therefore, overruled F
second preliminary objection that the Reference was vague. As
far"as third preliminary objection was concerned, the Court had
directed the learned Additional Solicitor General to file a
.statement setting out the charges and the facts forming basis
thereof, which might need to be inquired into consistently with
G
the procedure laid down by this Court ill the matter of Reference
- .... under Article 317 ( 1) of the Constitution Special Reference No.
1 of 1983 decided on August 17, 1983 and reported in (1983)
4 SCC 258. In accordance with the direction of the Court, the
statements of allegations and statement of charges were filed.
H
1012 SUPREME COURT REPORTS [2008] 15 S.C.R.

A 10. In order dated July 14, 2006 it was observed by this
Court that the Reference relates to three charges. The OPSC
had prayed to grant eight weeks' time to file the list of witnesses
and the affidavits of the witnesses along with documents by
which the charges were said to be proved against Dr. Mirdha.
s The said request was granted by the Court. It was further
observed in the order that on filing of the list of witnesses etc.,
further directions in respect of nominating a Judge to record
the cross-exam:nation of the witnesses, if sought for by Dr.
Mirdha, would qe issued as also the place of recording the /

c . evidence. Dr. Mirdha was also given liberty to file within eight
weeks a list of witnesses and affidavits along with documents
in defence of the charges. Accordingly affidavits and reply ·
affidavits have been filed. It was agreed by the learned counsel
for the parties that the Reference should be decided on the
D basis of the affidavits filed by the parties.
).-·

11. This Court has heard the learned counsel for the parties
at length and in great detail. This Court has also perused the
affidavits, reply affidavits and documents produced along with
those affidavits.
E
12. From the record of the case it is evident that Dr. Mitdha
was appointed as Chairman of the Commission on April 30,
1999. This was not liked by Dr. (Ms.) Prativa Ray, who herself
wanted to be the Chairman of the Commission and, therefore,
F started behaving in a manner to defy the authority of the
Chairman. The atmosphere of the Commission was absolutely
vitiated and the Members of the Commission had approached
the press hitting at the Chairman and criticizing the functioning
of the Commission under his leadership on number of
G occasions. The advertisement for conducting Orissa Civil
Services Examination was approved by the Commission on
November6, 2000. In fact there is no rule and/or order requiring
that the Chairman or the Members of the Commission and
employees should give a declaration as to whether their near
relatives are appearing in the examination. There can be no
H
IN RE: DR. H.B. MIRDHA [J.M. PANCHAL, J.] 1013

)
doubt that if a selection committee is constituted for the purpose A
of selecting candidates on merits and one of the members of
the selection committee is closely related to a candidate
appearing for the selection, it would not be enough for such
Member merely to withdraw from the participation in the
interview of the candidate related to him but he must withdraw B
altogether from the entire selection process and ask the
1 authorities to nominate another person in his place on the
selection committee so that the selections made are not
vitiated on account of reasonable likelihood of bias. In the
meeting dated November 20, 2000 it was decided with the c I
approval of Dr. Mirdha as Chairman of the Commission that
the Chairman, Members and the staff of the Commission should
give declaration as to whether his near relation was a candidate
for the examination. The record further shows that on January
8, 2001 Dr. Mirdha submitted his declaration that his two D
unmarried daughters, who were staying with him, were not
appearing in the Orissa Civil Services Examination.
Subsequent to above mentioned declaration, two married
daughters of Dr. ~irdha applied on January 31, 2001 for
undertaking the examination. On January 22, 2001 Mr. H.S.
E
Sarkar, a Member/ of the OPSC signed a declaration stating
that none of his relatives nor any person in whom he was
interested was the applicant in the ensuing recruitment. Dr. (Ms.)
Prativa Ray did not sign the declaration until June 7, 2001. On
June 11, 2001 she made a declaration that one of her relations
was appearing in the OPSC examination. In view of the F
declaration made by D~. (Ms.) Ray Mr. H.S. Sarkar was made
lncharge to conduct the preliminary examination. The last date
for receipt of the applications for Orissa Civil Services
Examination was January 31, 2001. In the meeting held on May
.....l.
10, 2001 the Commission unanimously resolved to hold the G
,,.
examination on July 8, 2001. It may be mentioned that in ·au
..,...... 51852 applications were received, out of which 1968 defective
applications were rejected. On May 31, 2001, the two married
daughters of Dr. Mirdha, who were applicants, sent a fax
message withdrawing their applications. On June 1, 2001 Dr. H
'·
1014 SUPREME COURT REPORTS [2008] 15 S.C.R.

A Mirdha submitted his declaration stating that none of his near
....
--4. '
relations nor· any person in whom he was interested was an .
·'
· applicant for the ensuing examination. The matter relating to the
issue of admission certificates· to the candidates and the
number of .applications to be rejected was placed before the
.B · Commission in its meeting held on June 2, 2001 .. As per the
affidavit filed by Mr. Sarkar, in this meeting Dr. Mirdha informed
that his two married daughters were candidates for the.
examination but that fact was not known to him and as they had.
withdrawn their candidature, there was no bar to his involvement
c in the examination process. According to Mr. Sarkarthis stand
of Dr. Mirdha was objected to by him. The issue of admissicm
certificates was a routine work of the Commission. But Mr. R.C.
Mohanty and Mr. H.S. Sarkar, who were present in the meeting,
did not cooperate and did not sign the proposal for issue of
D admission certificates. Since the arrangements in consultation
with coordinators, i.e., concerned Collectors, Additional District ';;.-
Magistrates and sub-Collectors were to be made for·hold.ing
examination, it was decided on June 4, 2001 to discuss the.
maner with the Chief Secretary to avoid d~adlock that had 'taken
place due to non-cooperation of the Members ·of the OPSC.
E Ultimately Dr. Mird.ha passed an order on June 5, 2001 to issue
admission certificates to the candidates. The record shows that
the three Members of the Commission requested the Chairman
to fix up a date for discussion regarding preliminary
. examination. The Members took the stand that the examination >-·
F process was vitiated in view of the fact that two married
daughters of the Chairman were candidates and that
withdrawal of candidature by the daughters had no effect and,
therefore, date earlier fixed for holding examination should be
postponed. What is relevant to notice is that on June 7, 2001
G Dr. (Ms.) Prativa Ray submitted a declaration that none of her
relatives was appearing in the examination but on June 11,
2001 she submitted another declaration stating that one of her
relatives was appearing in the examination~

H 13. The principle, which requires that a Member of a
IN RE: DR. H.B. MIRDHA [J.M. PANCHAL, J.). 1015

Selection Committee, whose close relative is appearing for A
selection, should decline to become a Member of the Selection
Committee or withdraw from it leaving it to the appointing
authority to nominate another person in his place need not be
applied in case of a constitutional authority like the Public
Service Commission, whether Central or State. If a Chairman B
or Member of Public Service Commission were to withdraw
altogether from the selection process on the ground that a close
relative of his is appearing for selection, no other person save
a Chairman and/or a Member can be substituted in his place.
And it may sometimes happen that no other Member is. c
available to take the place of such Chairman or Member and
the functioning of the Public Service Commission may be
affected. Here in this case the married daughters of Dr. Mirdha
had withdrawn their candidature before the examinations were·
held. They had neither appeared in the examination nor Dr. D
Mirdha had taken any step in selecting any of his two daughters
for the Orissa Civil Services. None of the close relative of Dr.
Mirdha had appeared for interview and, therefore, no occasion
arose for Dr. Mirdha to withdraw from participation in the
interview, etc. As noticed earlier Dr. (Ms.) Prativa Ray had E
submitted a declaration on June 7, 2001 stating that none of
her near relative was appearing in the examination, but within
few days, i.e., on June 11, 2001 she had submitted another
declaration stating that one of her relatives was appearing in
the examination~ It is strange that no reference had been made
under Article 317(1) of the Constitution against Dr. (Ms.) Prativa F
Ray though on the same ground Reference is made against
the Chairman to this Court. It has also come on record that the
Law Department of th'e State Government opined to refer the
matter, under Article 317(1) of the Constitution against
remaining Members of the OPSC for their acts of G
insubordination, non-cooperation, etc. amounting to
misbehaviour on their part, but no Reference is made to this
Court against remaining Members of the OPSC. Article 317,
like Article 124(4) does not define misbehaviour or enumerate
what acts would constitute misbehaviour except that Clause (4) H
1016 SUPREME COURT REPORTS [2008] 15 S.C.R.

A of Article 317 makes an improvement in specifying
misbehaviour, namely, being interested in any government
contract. Outside Clause (4), it is left to the Supreme Court to
determine whether any particular act or conduct is of such a
nature as to warrant the removal of the Chairman or Member
B on the ground of 'misbehaviour'. Ordinarily bribery, corruption
and the like should be regarded as such 'misbehaviour'. But
there is no limitation prescribed by the Constitution· itself. In
Madan Lal vs. State of J & K [(1995) 3 SCC 486), petition was
filed to challenge the process of selection of Mun_sifs undertaken
c by J & K Public Service Commission. One of the grounds urged
was that the respondent No. 13 being daughter of the Chairman .
of the Commission and daughter:-in-law of another' Member
thereof, was given a special favourable treatment by unduly
inflating her marks in viva voce testso that anyhow she would
get selected for post of Munsif and hence her selection was
0
bad in law. It was found that the Chairman and the Member had
disassociated themselves from the selection process as
respondent No.' 13 was competing. It was argued by the
learned counsel for the petitioners that relatives of the Members
simpliciter were not disqualified from applying_ for the post
E advertised. The plea that other Members, who were
bureaucrats and would be having liking and soft corner for each
other, did not find favour with this Court and ultimately the said
plea was rejected. In Article 124 (4) 'misbehaviour' means
wrong conduct or improper conduct. It has to be construed with
F reference to the subject-matter and the context wherein the term
occurs, having regard to the scope of the Act or the Statute
under consideration. Every act or conduct or error of judgment
or negligence by a constitutional authority per se does not
amount to misbehaviour. Misconduct implies a creation of some
G degree of mens rea by the doer. Willful abuse of constitutional
office, willful misconduct in the office, corruption, lack of integrity
or any other offence involving moral turpitude would be
misbehaviour. Judicial finding of guilt of grave crime is
misconduct. Persistent failure to perform duties or willful abuse
H of the office would be misbehaviour. On the facts and in the
\

IN RE: DR. H.B. MIRDHA [J.M. PANCHAL, J.] 1017

circumstances of the case this Court is of the opinion that A
charge No. 1 that Dr. Mirdha, who was Chairman of the OPSO,
committed misbehaviour by not informing that his two married
daughters were to appear in the examination is not proved.

14. As far as the second charge is concerned this Court 8
finds that on June 12, 2001 it was intimated that the meeting
of the Commission would take place on June 14, 2001 for
discussion and disposal of various cases relating to promotion
etc. and the agenda was circulated. On June 13, 2001 Dr. (Ms.)
Prativa Ray alleged that the Chairman had threatened her with C
life and also threatened other Members of the Commission on
many occasions in Commission's meetings. It was also alleged
that on June 7, 2001 the Chairman had misbehaved with her
and threatened to launch a tirade against the three Members
of the Commission. On June 14, 2001 Dr. (Ms.) Ray had also
filed a complaint with the police and given the same a ~ide D
publicity in the newspapers. On June 14, 2001 the Chairman
fell ill and, therefore, the meeting had to be cancelled. The
intimation indicating cancellation of the meeting was circulated
amongst the Members of the Commission. However, the
Members preferred to hold the meeting in the absence of the E
Chairman and discussed the matters which were not forming
part of the agenda and decided that the examination be
postponed to a later date as, according to them, the
examination process had vitiated. The three Members of the
Commission thereafter requested the Chairman on June 18, F
2001 to hold an emergent meeting on June 19, 2001. The said
meeting was conducted under the Chairmanship of Dr. Mirdha.
The Chairman did not agree to postponement of the
examination because postponement would have resulted into
huge loss to the Commission. However, the Members with a G
majority decision decided to postpone the date and also
~ '
decided to give wide publicity through media. On September
19, 2001 there was no agenda for discussion regarding OCS
(Main) examination in the Commission's meeting. However, Mr.
Sarkar brought one page note sheet mentioning that
H
1018 SUPREME COURT REPORTS [2008] 15 S.C.R.

A ·"discussed. Dr. (Ms.) Prativa Ray, will rem~n incharge of OCS ·~
Examination 2000 (Main)", which was signed by two other
.Members also. The Chairman did not agree with the said
proposal and gave his note of dissent. The matter was not
discussed as an approved agenda in the Commission's
B meetillg. The police investigated into the complaint of Dr. (Ms.)
·Ray regarding threatening phone call made by Dr. Mirdha on
June 7, 2001 and submitted the final report stating that the cas~ 1·
was closed for want of evidence. The record further shows that .
the final report of the police was accepted-by the learned
c Magistrate and Dr. (Ms.) Prativa Ray did not file the protest
·petition. The proceedings of different meetings of the
Commission would indicate that Dr. Mirdha had not acted in a
manner so as to compromise the image, the dignity and the
impartiality of the OPSC. Therefore, the said allegation does
D not stand proved. Further no credible evidence could be
adduced before this Court that Dr. Mirdha, who was then :~
Chairman of the OPSC, had been associated with a private
coaching centre at Sambalpur known as OAS Coaching Centre
providing classes in respect of the examination being
conducted by the OPSC, even while holding the Office of
E Member/Chairman of the OPSC. Therefore, it is difficult to hold
that Charge No. 2 levelled against Dr. Mirdha is proved. ·

15. As far as Charge No. 3 is concerned it was alleged
. that Dr. Mirdha as Chairman, OPSC, had received Rs.1.5 lacs
F to favour one Ms. Ajanta Nayak to get her selected as Junior
Lecturer in Home Science for a post advertised on January 26,
. 1999 in respect of which written examination was held on March
5, 2000 and the oral interview was held on June 12,. 2000.
What was alleged was that Ms. Ajanta Nayak was selected
G despite she having secured the lowest marks in the written test
whereas the marks awarded to Ms. Patro, at oral interview, who
I
had secured the maximum marks in the written test, were
intentionally reduced at the behest of Dr. Mirdha. It is relevant
to notice that charge of bribery was levelled by Ms. Patro after
H about six months by writing a letter to the Chief Minister.
/

IN RE: DR. H.B. MIRDHA [J.M. PANCHAL, J.] 1019

According to her, she was informed by Ms. Ratna Sahu, who A
was one of the experts in the subject, that she was given a
pencil in place of a pen to allot marks and that when she came
down steps after the interview she found some people
discussing that a bribe of Rs.1.5 lacs was paid by Ms. Ajanta
Nayak to the Chairman. It is an admitted fact that the Lokpal B
had recorded the statement of two witnesses, i.e., Ms. Ratna
Sahu a11d Ms. Adarmani Baral, whose niece had appeared in
the inte..View. The Lokpal did not administer the oath nor got
the statements verified. As per tl)e statement when Smt.
Adarmani Baral was sitting in the waiting room, there was a c
discussion regarding bribe having been paid to the Chairman .
. The Chairman had replied that in the written test conducted, Ms.
Pranati Patro had secured 102 marks whereas Ms. Ajanta
Nayak had secured 126 marks·. It was also mentioned by him
that one Susmita Ba hera had. secured 116 marks and Smt
Bharti Nayak had secured 114 marks. What was stated by the D
Chairman was that Viva Voce test of 20 marks was held
wherein Ms. Patro and Smt. Bharti Nayak secured 14 marks
each whereas Ms. Ajanta Nayak secured 18 marks and Smt.
Susmita Bahera had secured 20 marks and, therefore, even if
said Ms. Patro had got 20 marks in the viva voce test, she would E
not have been selected. Having perused the record of the case
this Court finds that even on preponderance of probability the
· charge that the Cpairman had accepted a sum of Rs.1.5 lacs .
as bribery for favouring Ms. Ajanta Nayak is not established.
In absence of cogent and reliable evidence this Court finds that F
. Charge No. 3 levelled against the Chairman of the OPSC is
··not proved.

· · · 16. The net discussion made above indicates that none·
of the charges levelled against Dr. Mirdha stand proved. The G
Reference is •. therefore, decided in favour of Dr. Mirdha and
answered in negative .
.i
17. The Reference accordingly stands disposed_ of.

R.P. Reference answered in the negative. H