Akd vs Union Of India & Ors
2022 Latest Caselaw 152 Cal

01   21.01.22                      WP.CT. 99 of 2021
     Ct. No. 04               Bappa Karmakar & Anr.
        Akd
                                             Vs.
                                Union of India & Ors.
                                         -------

Mr. Dilip Kumar Samanta, Mr. Biswapriya Samanta, Mr. Debapriya Samanta, Mr. Ashis Kumar Paul, Mr. Snehasish Mukherjee.

... for the petitioners.

Mr. Debopriya Gupta, Mr. Arijit Majumder.

... for the Union of India.

The writ petition was taken up on 11th January, 2022 and upon hearing the respective Counsels appearing for the parties, the judgement/order was dictated in open Court upon setting aside the impugned order and directing the authorities to consider the claim of the writ petitioner on compassionate ground taking into account the Rules/Regulations prevalent at the time of death of the employee.

The reliance was placed upon the judgement of the Supreme Court in case of Canara Bank & Anr vs. M. Mahesh Kumar reported in (2015) 7 SCC 412, which also took note of the earlier judgement of the Supreme Court rendered in case of State Bank of India & Ors. vs. Jaspal Kaur reported in (2007) 9 SCC 571.

After transcribing the order, which was dictated in open Court, before we proceed to sign the same, it was noticed that the said order is not in tune with the correct proposition of law standing on that date and the judgement, which has been relied upon, was virtually distinguished in a subsequent decision of the Supreme Court; even by a larger forum of three Judges.

We were skeptical whether we had any power to recall, alter or change the order dictated in open

Court completely before the same is signed, but we get impetus to such notion and the power conferred upon the Court from a judgement of the Supreme Court rendered in case of Surendra Singh & Ors. vs. State of Uttar Pradesh reported in AIR 1954 SC 194. The identical situation arose before the Allahabad High Court and the learned Judge, who faced such difficulty, referred the matter to the Chief Justice to constitute a Full Bench to answer such reference. The Full Bench of Allahabad High Court in case of Sangam Lal vs. Rent Control and Eviction Officer, Allahabad & Ors. reported in AIR 1966 All 221 held that a judgement, which is dictated in open Court, can be changed completely before it is signed and sealed, but the learned Judge bears one thing in mind before he proceeds to exercise such act, the parties, who appeared before the Court, must be given an opportunity of being heard. The enlightening observations made by the Full Bench in paragraph 6 thereof is reproduced as under:

"6. In our view, this decision of the Supreme Court furnishes a complete answer to the question referred to us. It makes it clear that there is power of "review" both in cases where judgment has been delivered but not signed and cases in which judgment has been delivered, signed and sealed; in the former case, the power to alter or amend or even to change comppletely is unlimited provided notice is given to the parties and they are heard before the proposed change is made, while in the latter case the power is limited and review is permitted only on very narrow grounds. We, are, therefore, of the view that Faulad v. State (1961 A.L.J.R. 244) was rightly decided and our answer to the question referred to us is as follows:-

'A judgment which has been orally dictated in open Court can be completely changed before it is signed and sealed, provided notice is given to all parties concerned and they are heard before the change is made'".

On the eve of a decade ago an identical situation arose in this Court when one of the Judges sitting singly was unable to trace the power to recall the order before it is signed and sealed and referred the matter to the Chief Justice to constitute a Full Bench.

In case of Binod Kumar Toppo vs. State of West Bengal reported in (2011) CHN 299 (FB) consisting of three Hon'ble Judges of this Court answered such reference in the following:

"11. In our opinion, the question referred to us has been already answered by the Supreme Court in the case Vinod Kumar Singh v. Banaras Hindu University (supra), which has been delivered even after the amendment of the Code of Civil Procedure by the Amending Act of 1976 and in the said decision, not only the amended provision of Rule 3 of Orde 20 has been taken note of but the earlier decision of the Supreme Court in the case of Surendra Singh (supra) was also relied upon. The following observations of the Supreme Court in the case of Vinod Kumar Singh (supra), would give the appropriate answer to the reference and would show that the videw taken by the Division Bench in the case of Suvra Dolui (supra) was not correct:

"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 Ciovil Procedure or, in very exceptional cases, under section 151 of the Code of Civil Procedure.

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 Cfourt 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 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.....'

12. We, therefore, answer the reference by relying upon the said decision of the Supreme

Court in the affirmative but such course should be adopted only in the circumstances quoted above. This reference is, thus, disposed of." The Law expounded above leaves no ambiguity that the Judge can alter, recall and/or change the order completely in exercise of suo motu power provided the order is not signed and sealed and the notice is given the parties and permitting them to make submissions.

The order dated 11th January, 2022 has not been signed and sealed by us having noticed the discrepancy and reason as indicated hereinabove and, therefore, we do not find any fetter to recall the said order and place the same again in the list and invite the Counsels appearing for the respective parties to make submissions afresh.

We, thus, recall the order dated 11th January, 2022.

Let this matter appear in the list on 25th January, 2022 as Specially Fixed Matter.

(Harish Tandon, J.)

(Rabindranath Samanta, J.)