Calcutta High Court (Appellete Side)
Binod Kumar Toppo vs State Of West Bengal & Ors on 11 November, 2010
Author: Dipankar Datta
Bench: Dipankar Datta
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6.12.2010 W.P. No. 20223(W) of 2010
Binod Kumar Toppo
-Versus-
State of West Bengal & ors.
Mr. Rudrajyoti Bhattacharya
...for the petitioner
Mr. P.S. Bhattacharya
....for the State
By dictating an order in open Court, I had
disposed of the instant writ petition on November
11, 2010. The District Inspector of Schools (S.E.),
Jalpaiguri was directed to consider the issue of
approval of a panel prepared by the authority of
Jalpaiguri High School for recruitment to a vacant
post of clerk therein. Incidentally, the petitioner
claimed that he secured the first position in the
panel. If approval to the panel were accorded, he
would be offered appointment on such post. He
was, therefore, eager to have the panel approved.
After the order was transcribed, the file was
placed before me on the following day for
signature. While reading the transcript of the order
that I had dictated, I was also perusing the writ
petition for tallying whether the recording of facts
in the order is correct or not. It was then that I
realized that I ought not to have passed the order
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that I did on November 11, 2010. I had committed
a grave mistake in proceeding on the basis that
interview was conducted by the school authority
on February 18, 2009 whereas it was actually
conducted on February 18, 2010. I do not
presently intend to discuss in detail why the date
of interview is so material for a decision on the
petition. However, I am convinced, it is a fit case
where the unsigned order ought to be recalled, and
after hearing the parties de novo, a fresh order
ought to be passed either maintaining the earlier
view or taking a different view.
I would have proceeded to recall the
unsigned order in the manner law empowers me to
do so, but a Division Bench decision of this Court
in Suvra Dalui vs. Netaji Subhas Open University
and others, reported in 2010 (1) CHN 302 stands
in the way. It would, therefore, be necessary to
note how the matter travelled to the Division
Bench and what was its ruling.
In Suvra Dalui (supra), the Bench was
considering a writ appeal against an order of the
single judge dismissing the writ petition. The judge
had initially passed an order (dictated in Court)
whereby the writ petition was allowed. Soon
thereafter, being doubtful of authenticity of the
claim of the appellant, the judge realized that the
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order ought not to have been passed. The judge
changed his mind and directed that the dictated
order should not to be transcribed. The writ
petition was enlisted as 'To be mentioned' two days
thereafter. Upon hearing the parties, the judge
expressed his mind why the untranscribed order
should be recalled and passed an order to that
effect. A further date was fixed for hearing the
parties. On that date the parties were heard and
on this occasion, the writ petition was dismissed.
Challenging the order of dismissal a writ appeal
was preferred, which the Division Bench allowed
by setting aside the order under appeal.
The Division Bench interpreted Rule 1 of
Order XX, Civil Procedure Code (hereafter the
Code) to hold, inter alia, that a judge must sign
the order pronounced in Court and such order
could only be recalled according to well established
principles. It would be useful to reproduce below
relevant extracts from the decision of the Division
Bench in Suvra Dalui (supra). The same read :
"12. Thus legislative intendment leaves no manner
of doubt whatever is pronounced in open Court has
to be transcribed and signed and the same must
remain in record.
13. Taking advantage of non-transcription the
learned Judge cannot change the judgment
altogether otherwise than the method provided in
Order 20 Rule 3 and in case of fraud practised in
court and inherent lack of jurisdiction under
inherent power of the Civil Court.
14. It seems to us the learned Trial Judge
presumably being inspired though not specially
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mentioned, with the judgment of Full Bench of
Allahabad High Court reported in AIR 1966 All. 221
adopted procedure to remake the judgment. We
have carefully examined this judgment of Full
Bench of Allahabad High Court and noticed that the
said Court has framed specific rule in 1952 with
regard to preparing, making, delivering and signing
judgments as contemplated in Order 20 of the Code
and the same permit the learned Judge to change
the judgment before signing. While taking note of
the said rule the Hon'ble Supreme Court in the case
of Surendra Singha & Ors., reported in AIR 1954 SC
194, held as statement of law before signing the
judgment pronounced in open Court immediately
after hearing can be altered, changed in its entirety.
15. We are of the view that the said pronouncement
of the Supreme Court lost its force after amendment
of Code of Civil Procedure by Amending Act No.104
of 1976 with insertion of amongst other sub-rule (3)
with proviso. In this Court for its Appellate Side or
for subordinate Court no separate rule is framed,
hence above rule of the Code is to be applied. We,
however, clarify that provision of Order 20 of the
Civil Procedure Code has no application by virtue of
Order 49 Rule 3(5) of the Code in the exercise of
ordinary or extraordinary original civil jurisdiction
by this Court.
16. We are thus unable to accept the contention of
Dr. Patra that before the judgment is signed, Court
has ample power to recall earlier order and to
rehear the matter. We think if such an interpretation
is given then there will be serious consequences
and this will erode confidence, credibility and
predictability of the justice delivery system in the
mind of the public at large. Whatever may be the
weighty and justified reason which had transpired
in the mind later on, cannot be ground for recalling
of the earlier judgment pronounced in open Court.
Judgment and order can only be recalled after the
same is transcribed and made part of the record
and signed under established procedure. Once the
matter was heard out in open Court and judgment
was dictated instantly after hearing the Hon'ble
Trial Judge had no option other than to sign it after
having got the same transcribed."
The Division Bench while laying down the
law as quoted above proceeded to hold that the
decision in Surendra Singh (supra) lost its force
after amendments were effected in the Code in
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1976, with insertion of, inter alia, sub-rule (3) with
proviso in Rule 1 of Order XX. In the process,
however, the Division Bench did not have the
occasion to consider the decision of the Supreme
Court in Vinod Kumar Singh vs. Banaras Hindu
University, reported in (1988) 1 SCC 80. This
decision, according to me, is a complete answer to
the question as to whether a judge retains the
power to effect alteration or amendment in respect
of an order pronounced by him in Court by
dictation, prior to the same being signed.
The Supreme Court even after amendment
of the Code by the Amendment Act of 1976 relied
on the observations of Hon'ble Vivian Bose, J. (as
His Lordship then was) in Surendra Singh (supra)
and ruled as follows:
"6. The above observations were made, as already
mentioned, in a case where the judgment had been
signed but not pronounced in the open court. In the
present case, we are concerned with a judgment
that had been pronounced but not signed. The
provision in Order 20 Rule 3 of the Code of Civil
Procedure indicates the position in such cases. It
permits alterations or additions to a judgment so
long as it is not signed. This is also apparently
what has been referred to in the last paragraph of
the extract from the judgment of Bose, J. quoted
above, where it has been pointed out that a
judgment which has been delivered 'can be freely
altered or amended or even changed completely
without further formality, except notice to the
parties and re-hearing on the point of change,
should that be necessary, provided it has not been
signed'. It is only after the judgment is both
pronounced and signed that alterations or additions
are not permissible, except under the provisions of
Section 152 or Section 114 of the Code of Civil
Procedure or, in very exceptional cases, under
Section 151 of the Code of Civil Procedure.
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7. But, while the court has undoubted power to
alter or modify a judgment, delivered but not
signed, such power should be exercised judicially,
sparingly and for adequate reasons. When a
judgment is pronounced in open court, parties act
on the basis that it is the judgment of the court and
that the signing is a formality to follow.
8. We have extensively extracted from what Bose,
J. spoke in this judgment to impress upon everyone
that pronouncement of a judgment in court whether
immediately after the hearing or after reserving the
same to be delivered later should ordinarily be
considered as the final act of the court with
reference to the case. Bose, J. emphasised the
feature that as soon as the judgment is delivered
that becomes the operative pronouncement of the
court. That would mean that the judgment to be
operative does not await signing thereof by the
court. There may be exceptions to the rule, for
instance, soon after the judgment is dictated in
open court, a feature which had not been placed for
consideration of the court is brought to its notice by
counsel of any of the parties or the court discovers
some new facts from the record. In such a case the
court may give direction that the judgment which
has just been delivered would not be effective and
the case shall be further heard. There may also be
cases -- though their number would be few and far
between -- where when the Judgment is placed for
signature the court notices a feature which should
have been taken into account. In such a situation
the matter may be placed for further consideration
upon notice to the parties. If the judgment delivered
is intended not to be operative, good reasons should
be given.
9. Ordinarily judgment is not delivered till the
hearing is complete by listening to submissions of
counsel and perusal of records and a definite view
is reached by the court in regard to the conclusion.
Once that stage is reached and the court
pronounces the judgment, the same should not be
reopened unless there be some exceptional
circumstance or a review is asked for and is
granted. When the judgment is pronounced, parties
present in the court know the conclusion in the
matter and often on the basis of such
pronouncement, they proceed to conduct their
affairs. If what is pronounced in court is not acted
upon, certainly litigants would be prejudiced.
Confidence of the litigants in the judicial process
would be shaken. A judgment pronounced in open
court should be acted upon unless there be some
exceptional feature and if there be any such, the
same should appear from the record of the case.
........."
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(underlining for emphasis by me)
To opine that a judge has no power to
correct a mistake committed by him (which is
likely to prejudice a party) even before the order is
signed by recalling the unsigned order does not
seem to me to be well conceived. Procedures are
the handmaids of justice. If indeed a judge were
held to have no power or competence to correct a
mistake that he committed while dictating an
order in open Court before such order is signed,
justice would be the greatest casualty. Judges are
supposed to render justice in the true sense of the
term, and not dictate and then sign orders
mechanically despite subsequent realization in a
given case that what has been dictated in open
Court, for good reason, is erroneous. An order may
be dictated, as in the present case, on wrong
perception of the factual position. A judge may
proceed to dictate an order being of the impression
that all the respondents have been served but
before signing the dictated order may find on perusal of the affidavit-of-service that there is no proof of delivery of copy of petition and notice on a party who would be affected by the order that has been passed. It may so happen, albeit rarely, that a judge after deciding a point of law by dictating an order in open Court comes back to his chamber 8 to find from a recently published journal that the Supreme Court has taken a different view on the same point. In all such cases as well as other exceptional cases that need no enumeration here, a judge may consider the desirability of recalling the order dictated in open Court after recording the reasons therefor. But the fundamental question here is, whether it is permissible for a judge to recall the dictated order or not having regard to the view expressed in Suvra Dolui (supra).
True it is, in a given case a party might act on the order pronounced in open Court, without the same being transcribed, and if such order is changed subsequently, serious consequence might ensue. However, this by itself may not be sufficient to hold that an untranscribed order must not be recalled. If in a given case it is argued that the order has been acted upon and therefore it should not be recalled is to be accepted to rule against permissibility, by the same analogy, while hearing a review petition it would not be permissible for a Court to exercise its power of review on the specious ground that the order under review has been acted upon. Rigid justice, as the saying goes, is the greatest injustice. In my view it would be a perversion of the justice delivery system if despite 9 existence of good reason a judge is held to have no power to atone for his mistake, and he has no option but to sign whatever has been pronounced in Court.
I feel, in keeping with the principle of actus curiae neminem gravabit (an act of the Court will hurt no person), it is the duty of a judge, suo motu, to correct a mistake committed by him when such mistake is detected prior to the order being signed. Such correction may be made in exercise of inherent powers of the Writ Court, which is resident in every court of superior jurisdiction. The decision in Indian Bank vs. Satyam Fibres (India) Pvt. Ltd., reported in (1996) 5 SCC 550, is an authority for the proposition that in exercise of inherent power, a Court can recall its own order if it commits a mistake likely to prejudice a party. Rule 53 of the Writ Rules framed by this High Court, referred to by the Division Bench in its decision in Suvra Dalui (supra) to hold that Order XX of the Code is applicable to writ proceedings, does not limit the Court's inherent power to pass any order for the ends of justice and to prevent abuse of the process of court.
Even otherwise, the procedural law in the Code (to the extent it can be made applicable to writ proceedings in terms of the first part of Rule 10 53 of the Writ Rules), does not also impose any such fetter. One may usefully refer to Rule 3 of Order XX of the Code. It reads:
"3. Judgment to be signed.--The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to save as provided by Section 152 or on review."
Rule 3 postulates that a judgment after it is signed shall not be altered or added to, save under Section 152 or on review. However, by any express provision or by necessary implication, a judge is not precluded from altering a judgment or adding to it after pronouncement but before the same is signed. If legislative intendment was that a judgment cannot be touched after it is pronounced, the provision of Rule 3 would have to be re-written as follows:
"3. Judgment to be signed.--The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once pronounced, shall not afterwards be altered or added to save as provided by Section 152 or on review." (word in bold font for emphasis) The legislative intendment is clear and the interpretation of Rule 3 as above is fortified by the Supreme Court's observation in Vinod Kumar Singh (supra) that Rule 3 permits alterations or 11 additions to a judgment so long as it is not signed. The Division Bench despite quoting Rule 3 of Order XX, chose to interpret Rule 1 of Order XX to hold otherwise.
Order XX of the Code, in view of Order XLIX Rule 3(5) thereof, is not applicable to chartered High Courts. However, in an appropriate case in future, the point that could exercise the consideration of the Court is whether principles flowing from Order XX per se would be applicable to a judge exercising writ powers. Explanation to Section 141 of the Code makes the position clear that the same would not apply to writ proceedings. I consider it to be mis-conceived that as a judge of the Calcutta High Court exercising powers of ordinary/extra-ordinary original civil jurisdiction I shall not be guided by Order XX but such provision would bind me when I am exercising powers of a judge of the writ court. The jurisdiction conferred by Article 226 of the Constitution on a judge of a High Court is plenary. The discretionary powers are exercised on principles of fairness, equity and justice. To limit such exercise of powers by the procedural nitty- gritty of the Code would amount to placing unnecessary fetters on the writ court's otherwise wide jurisdiction. There is no harm if the 12 principles flowing from the Code are applied by a judge to writ proceedings, to the extent applicable in a particular case, subject however to the Writ Rules. However, to lay down an absolute proposition of law that a judge of the writ court, in exercise of his jurisdiction, would have to follow the provisions of the Code in toto runs counter to the opening words and the second part of Rule 53, and does not appeal to me to be quite sound. The opening words and the second part of Rule 53, probably, escaped the notice of the Division Bench.
Be that as it may, it is clear from a reading of the decision in Suvra Dalui (supra) that the Division Bench proceeded to lay down a different proposition of law on an issue which is no longer res integra by reason of the decisions in Surendra Singh (supra) and Vinod Kumar Singh (supra).
Having regard to my understanding of law, I have no doubt in my mind that an order or a judgment dictated in open Court by a judge, before the same is signed, may be corrected by him to secure ends of justice as also to prevent its miscarriage.
In a situation of the present nature (where a single judge is faced with a decision of the Division Bench of the same Court which lays down a 13 proposition of law different and inconsistent with the principle of law laid down by the Supreme Court), the proper course that is to be followed may be traced in the treatise of Salmond on Jurisprudence wherein under "Circumstances destroying or weakening the binding force of precedent", it has been observed by the learned author as follows :
Inconsistency with earlier decision of higher court. It is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. If, for example, the Court of Appeal decides a case in ignorance of a decision of the House of Lords which went the other way, the decision of the Court of Appeal is per incuriam, and is not binding either on itself or on lower courts; on the contrary, it is the decision of the House of Lords that is binding. The same rule applies to precedents in other courts, such as the Divisional Court.
It has also been ruled by a Division Bench of this Court in Eastern Coalfields Ltd. vs. Sudama Das, reported in 2007 (1) CHN 851 that if the precedent of a higher Court is contrary to the precedent of another Court which is superior to the higher Court, the precedent of the higher Court would not be binding on the lower Court.
However, in Ahamed Hossain Sk. vs. State of West Bengal & ors., reported in 2001 (2) CHN 762, a bench of 3 (three) learned Judges even after ruling that a precedent ceases to be a binding precedent when, inter alia, it is rendered per 14 incuriam proceeded to observe that "if the decision of the Larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench."
The decision in Suvra Dolui (supra) having not considered the decision in Vinod Kumar Singh (supra) has expressed a view contrary to the views of the Supreme Court. One would be inclined to hold the decision in Suvra Dalui (supra) to be bereft of precedential value. But I shall be failing in my duty and be liable to be accused of "judicial obstinacy" if I were to recall the unsigned order of November 11, 2010 on the basis of my understanding of the extant law and proceed to hear the parties afresh by-passing the decision in Suvra Dalui (supra). After all, the judge who had dismissed the writ petition of Suvra Dalui was none other than myself. My order having been set aside by the Division Bench, it would be contrary to accepted standards of judicial discipline, decorum and propriety to hold that the Division Bench is wrong and that I was right.
I, therefore, consider it proper to direct that the cause papers be placed before the Hon'ble the Chief Justice for considering the desirability of obtaining judicial opinion on the following issue : 15
"Is it not open to a judge, in exceptional circumstances upon putting the parties on notice and after recording reasons, to correct an inadvertent mistake which he realizes he had committed while dictating an order in open Court by recalling the order so dictated before it is signed and thereafter to hear the parties afresh?"
The parties shall be at liberty to mention the writ petition before me at the appropriate time.
However, to protect the interest of the petitioner, it is directed that the post in question for which he is an aspirant shall not be filled up without the leave of Court. This direction is issued in exercise of my inherent power to secure ends of justice.
Before parting at this stage, I record my sincere appreciation for the able assistance rendered by Mr. Bhattacharya, learned counsel for the petitioner, and Mr. Jayanta Kumar Mitra and Mr. Partha Sarathi Sengupta, learned senior counsel who assisted me as amicus curiae on my request taking time out of their busy schedule.
There shall be no order for costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties, as early as possible.
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(DIPANKAR DATTA, J.)