Orissa High Court
Bhuban Mohan Dash vs State Of Orissa And Others on 4 December, 2023
Bench: B.R. Sarangi, Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 18559 of 2015
Bhuban Mohan Dash ..... Petitioner
Mr. S.K. Dash, Adv.
Vs.
State of Orissa and others ..... Respondent
Mr. S. Nayak, ASC
Mr. M. Pradha, Adv. on behalf of
Mr. D. Mohapatra, Adv.[O.P.No.3]
CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
04.12.2023
I.A. No. 19000 of 2023
Order No. This matter is taken up by hybrid mode.
43.
2. This application has been filed by the petitioner seeking
recall of the judgment dated 29.11.2023 passed in W.P.(C) No.
18559 of 2015 where in paragraph-81 certain typographical errors
have been crept in and instead of paragraph '82' it has been
inadvertently typed out as '52'.
3. Mr. S.K. Dash, learned counsel appearing for the petitioner
has relied upon the judgment of the apex Court in the case of
Budhia Swain and others v. Gopinath Deb and others, AIR
1999 SC 2089 : (1999) 4 SCC 396, in which the apex Court by
assigning reasons held that an earlier judgment/order made by the
Court or Tribunal can be recalled by it. Thus, it is contended that
the grievance of the petitioner falls within the ambit of the law
laid down by the apex Court in the aforementioned judgment.
4. For the sake of clarity, paragraphs-6, 7 and 8 of the
judgment passed by the apex Court in Budhia Swain and others
(supra) are extracted hereunder:-
"6. What is a power to recall? Inherent power
to recall its own order vesting in tribunals or
courts was noticed in Indian Bank Vs. Satyam
Fibres India Pvt. Ltd., MANU/SC/0657/1996:
AIR 1996 SC 2592. Vide para 23, this Court
has held that the courts have inherent power to
recall and set aside an order (i) obtained by
fraud practised upon the Court, (ii) when the
Court is misled by a party, or (iii) when the
Court itself commits a mistake which
prejudices a party. In A.R. Antulay Vs. R.S.
Nayak & Anr. MANU/SC/002/1988 : 1988
CriLJ 1661, this Court has noticed motions to
set aside judgments being permitted where (i) a
judgment was rendered in ignorance of the fact
that a necessary party had not been served at
all and was shown as served or in ignorance of
the fact that a necessary party had died and the
estate was not represented, (ii) a judgment was
obtained by fraud, (iii) a party has had no
notice and a decree was made against him and
such party approaches the Court for setting
aside the decision ex debito justitiae on proof
of the fact that there was no service.
7. In Corpus Juris Secundum (Vol. XIX) under
the Chapter "Judgment-Opening and Vacating"
(paras.265 to 284 at pages 487-510) the law on
the subject has been stated. The grounds on
which the courts may open or vacate their
judgments are generally matters which render
the judgment void or which are specified in
statutes authorising such actions. Invalidity of
the judgment of such nature as to render it void
is a valid ground for vacating it at least if the
invalidity is apparent on the face of the record.
Fraud or collusion in obtaining a judgment is a
sufficient ground for opening or vacating it. A
judgment secured in violation of an agreement
not to enter judgment may be vacated on that
ground. However, in general, a judgment will
not be opened or vacated on grounds which
could have been pleaded in the original action.
A motion to vacate will not be entered when the
proper remedy is by some other proceedings,
such as by appeal. The right to vacation of a
judgment may be lost by waiver or estoppel.
Where a party injured acquiesces in the
rendition of the judgment or submits to it,
waiver or estoppel results.
8. In our opinion a tribunal or a court may
recall an order earlier made by it if (i) the
proceedings culminating into an order suffer
from the inherent lack of jurisdiction and such
lack of jurisdiction is patent, (ii) there exists
fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the court
prejudicing a party or (iv) a judgment was
rendered in ignorance of the fact that a
necessary party had not been served at all or
had died and the estate was not represented.
The power to recall a judgment will not be
exercised when the ground for re-opening the
proceedings or vacating the judgment was
available to be pleaded in the original action
but was not done or where a proper remedy in
some other proceeding such as by way of
appeal or revision was available but was not
availed. The right to seek vacation of a
judgment may be lost by waiver, estoppel or
acquiescence."
5. Heard Mr. S.K. Dash, learned counsel appearing for the
petitioner; Mr. S. Nayak, learned Addl. Standing Counsel
appearing for the State-Opposite Parties; and Mr. M. Pradhan,
learned counsel appearing on behalf of Mr. Dayananda
Mohapatra, learned counsel for opposite party no.3, and
considered the arguments advanced by learned counsel appearing
for the parties.
6. All the parties agreed that there are some typographical
errors in paragraphs-81 of the judgment dated 29.11.2023 passed
in W.P.(C) No. 18559 of 2015. Therefore, considering the
submission made by learned counsel for the parties and after
going through the records, including the judgment of the apex
Court referred to above, the judgment dated 29.11.2023 passed in
W.P.(C) No. 18559 of 2015 is hereby recalled and fresh
judgment is passed today by substituting paragraph-81 of the
judgment to the following effect:-
"81. In view of the discussions, as above, the
Odisha Development Authorities (Retirement Benefit
of the Employees) Rules, 2015 under Annexure-6 to
the writ petition is hereby declared ultra vires to the
provisions contained in the Orissa Development
Authorities Act, 1982 as well as Articles 14 & 16 of
the Constitution of India, 1950 and as a logical
corollary, the following consequences ensue:
i. Employees working under any
Development Authority constituted under
the Odisha Development Authorities Act,
1982, who are in receipt of the pensionary
benefit at par with their counterparts in
State Government cannot be affected by
any subsequent Rule; and
ii. In the light of the judgment in the case of
Shri Ananda Dash (supra), the
employees, who had joined in service prior
to 17.09.2005, i.e, the date of notification
of the amendment in Sub-Rule (4) of Rule
(3) of the Odisha Civil Services (Pension)
Rules, 1992, are to get their retiral
benefits at par with their counter parts in
the Government inasmuch as they cannot
be equated with the employees working in
an industry or factory establishment in
view of the ratio of the decision of the co-
ordinate Bench in the case of Cuttack
Development Authority Vs. Regional
Provident Fund Commissioner (Supra)
and Employees Provident Fund
Organization Vs. Raipur Development
Authority (Supra); and
iii. Employees working under any
Development Authority, who have joined
after 17.09.2005, would be entitled to the
benefits under the new structured defined
contribution pension scheme as applicable
to their counterparts in the State
Government in terms of the Odisha Civil
Services (Pension) Rules, 1992.
Accordingly, it is held that the petitioner, being an
employee appointed prior to 01.01.2005, is entitled
to get pension, as is being availed by the similarly
situated employees under the State Government. Let
the retrial benefits be disbursed in favour of the
petitioner, who is stated to have been retired on
superannuation during the pendency of the writ
petition, in accordance with law, within a period of
the three months from the date of receipt of the copy
of judgment."
7. The last paragraph of the judgment inadvertently
numbered as '52' is corrected as '82'.
8. The Interlocutory Application stands disposed of.
9. The fresh judgment passed today be uploaded in the
Court's website by deleting the earlier judgment passed on
29.11.2023.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
Ashok
(M.S. RAMAN)
JUDGE
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 06-Dec-2023 16:17:02
