Dissenting Judge Must Express Dissent In Open Court If Main Order Is Dictated In Court: Orissa High Court

The Orissa High Court has crystalised that when order is dictated in the open Court by a Bench consisting of two or more Judges, the Judge(s) who intends to differ from the opinion of the Bench or put up a dissenting judgment must dictate his dissenting order or at least, indicate his intention about recording the dissent in the open Court.

The Division Bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra also made it clear that any failure on the part of the dissenting Judge to express/indicate his dissent in open Court would result in his deemed-agreement to the judgment dictated and conclusion reached by the Bench collectively.

“If he fails to do so, the decision which is so pronounced (dictated) becomes a declaration of the mind of the Bench (Court) and becomes the operative pronouncement of the Court. After the judgment/order becomes the operative pronouncement of the Court, it can be altered or amended and even changed completely, only with notice to the parties and a re-hearing on the point of change should that be necessary, provided it has not been signed,” the Court said.

Case Background

The case stemmed out of a writ petition filed by Malaya Ranjan Dash, currently the 4^th senior-most Judicial Officer of Odisha and a former Registrar General of the High Court, against disciplinary actions taken against him for registering a suo moto case on the basis of a split order, without the approval of the then Chief Justice.

While working as the top Registrar of the High Court, on February 26, 2021, the petitioner received an order passed by one Division Bench dated February 24, 2021, along with an official note-sheet from the Deputy Registrar (Judicial).

Through the note-sheet, the Deputy Registrar (Judicial) urged the petitioner to approve the same in order to give effect to the direction passed by the Division Bench, which had asked the Registry to supply the copy of its order along with brief to certain Senior Advocates, appointed as Amicus Curiae in that case, by February 26, 2021. Such direction could not have been complied with in the letter and spirit without registering a suo moto writ petition.

In order to comply with the direction, the petitioner promptly endorsed the note-sheet and registered a suo moto case. However, the then Chief Justice allegedly expressed displeasure over the manner in which the petitioner dealt with the matter and proceeded on to register the suo moto case without obtaining his approval.

Subsequently, he was removed from the Registry and posted as the District Judge of Rayagada district. He was served with a show cause notice as to why and under which circumstances, he registered the suo moto writ petition.

Interestingly, along with the show-cause notice, the delinquent officer was also provided with a copy of the order of the said Division Bench. The petitioner contended that it is for the first time he came to know that the junior Judge sitting on the Bench had given a dissenting order while disagreeing with the conclusions reached at by the senior Judge on the Bench, which was later directed to be placed before a third Judge.

The petitioner claimed that the order which was placed before him on February 26, 2021 along with the note-sheet by the Deputy Registrar (Judicial), did not contain a dissenting opinion of the junior Judge. Later on, it was revealed that the said dissenting judgment came to the fore only on March 02, 2021.

Therefore, a peculiar question arose as to the acceptability and propriety of such dissenting order, especially against the backdrop of an admitted fact that the dissenting Judge had not expressed his intention to record a dissent to the order dictated by the senior Judge on the Bench in the open Court.

Court's Observations

The Court perused the original case records of the said Division Bench which revealed that the senior Judge had dictated an order in the open Court on February 24, 2021, but the junior Judge omitted from expressing his dissent or dictating a separate dissenting judgment in open Court.

While the matter stood thus, the order (as dictated by the senior Judge) was placed before the petitioner on February 26, 2021 by the Deputy Registrar (Judicial) for his endorsement and registration of a suo moto writ petition, as directed by the Bench. The petitioner complied with the order promptly, without the approval of the Chief Justice, purportedly after consulting the senior Judge over a phone call.

After a week, the junior Judge allegedly published his dissenting judgment on March 02, 2021, for which the matter was directed to be placed before the Chief Justice for its due referral to a third Judge for proper adjudication.

However, the petitioner was held guilty for misconduct and dereliction in duty as well as administrative indiscipline for acting on an unsigned 'scrap paper' (the order). Therefore, the Court went on to determine as to whether the petitioner could have acted upon an unsigned order of the Court after it was pronounced in the open Court. In other words, the question was whether signing of an order is merely a 'formality' after an order gets pronounced by the Judges in open Court.

In order to answer this question, the Court relied upon the judgment of the Supreme Court in Surendra Singh v. The State of U.P. (1953) wherein it was held that –

“As soon as the judgment is delivered, that becomes the operative pronouncement of the court. The law then provides for the manner in which it is to be authenticated and made certain… Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication.”

Reliance was also placed upon Vinod Kumar Singh v. Banaras Hindu University (1988) which authoritatively held that judgment to be operative does not await signing thereof by the Court. Thus, taking a cue from the above-mentioned precedents, the Court held that if a judgment/order is dictated in the open Court by one of the Judges in a Division Bench and if the other Judge does not agree with the view expressed (dictated) in open Court, he would have to pronounce his view/dissent immediately in the Court itself.

“When the judgment/order is pronounced, parties present in the Court know the conclusion in the matter and often on the basis of such pronouncement, proceed to conduct their affairs…Now-a-days when the court proceedings are live streamed, the chance of the party knowing the order instantly and likely to proceed to conduct himself accordingly is more certain. If what is pronounced in the Court is not acted upon, certainly litigants would be prejudiced,” it observed.

A judgment/order pronounced in open court, the Court held, should be acted upon unless there is some 'exceptional feature' and if there be any such cause, the same should appear from the record of the case.

“Once the judgment/order is pronounced (dictated) in the open Court on conclusion of arguments, the companion Judge on the Bench, if he does not agree with the view expressed in the dictated/pronounced judgment/order, he should express his dissent either by dictating his opinion/view immediately thereafter in the open Court itself or should at least inform counsel appearing for the parties and the parties, if they are present in the Court, that he does not agree with the view expressed by the Senior (other) member of the Bench,” it added.

Justice Sahoo, who authored the judgment, also made it clear that if the dissenting Judge fails to express his intention to dissent in open Court, the decision which is so pronounced/dictated becomes the declaration of the Bench and becomes the operative judgment of the Court.

He, however, clarified that after the judgment/order becomes the operative pronouncement of the Court, it can be altered or amended and even changed completely, only with notice to the parties and subsequent to a re-hearing on the point of change, if necessary, provided it has not been signed.

“In a Division Bench, when the judgment/order is dictated in open Court by one Judge and the other Judge does not express his dissent either by dictating his opinion/view and remains silent instantly and subsequently passes a dissenting judgment/order, the public will be confused and there will have no sanctity in the dictation of an order or judgment in open court and they have to wait till they verify the order or judgment after it is signed by both the Hon'ble Judges,” the Court further held.

Therefore, it came to the conclusion that when the order dated February 24, 2021 was dictated in open Court by the senior Judge of the Division Bench and the other Judge did not express his dissent either by dictating his opinion/view immediately in the Court itself on that day nor did he inform the counsel/the parties about his intention, such order becomes operative upon its pronouncement even without signature of the Judges.

Case Title: Malaya Ranjan Dash v. State of Odisha & Ors.

Case No: W.P.(C) No. 28874 of 2023

Date of Judgment: May 02, 2025

Counsel for the Petitioner: Mr. Budhadev Routray, Senior Advocate

Counsel for the State: Mr. Pitambar Acharya, Advocate General along with Mr. Aurobinda Mohanty, Addl. Standing Counsel

Citation: 2025 LiveLaw (Ori) 70

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