Allahabad High Court
Smt. Saliha Begum vs State Transport Appellate ... on 10 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2047
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RESERVED
Case :- MISC. SINGLE No. - 16268 of 2019
Petitioner :- Smt. Saliha Begum
Respondent :- State Transport Appellate Tribunal,U.P. And Ors.
Counsel for Petitioner :- Smt. Pushpa Saxena,Alok Saxena
Counsel for Respondent :- C.S.C.,Ratnesh Chandra
*****
Hon'ble Jaspreet Singh,J.
The petitioner by means of the instant petition assails the order dated 09.08.2018 passed in Revision No.53/2016 as well as order dated 29.03.2019 passed in Misc. Case No.66/2018 by the State Transport Appellate Tribunal at Lucknow.
In order to put the controversy in a perspective, certain facts giving rise to the above petition are being mentioned hereinafter.
The petitioner is a holder of a regular stage carriage permit for the route Lucknow-Kursi-Tikaitganj-Mehamoodabad and the said route is covered by Vehicle No.UP-32-CZ-3245 and is valid upto 12.07.2020. In respect of the aforesaid route, six permits were issued and thereafter in the year 1981 certain extensions were granted. Later, as per the approved scheme of 15th October, 1984 which included six old permit holders and they were permitted to ply and operate on the route in question Lucknow-Kursi-Tikaitganj-Mehamoodabad along with the vehicles of the State Transport Undertaking with the condition that they shall not pick up or drop the passengers in between Lucknow-Kursi-Tikaitganj-Mehamoodabad or between the places in either directions. It has been pleaded that the aforesaid route in question is about 60 kilometers out of which the notified operation of the route is about 36 kilometers and the petitioner with other five permit holders are plying their vehicles. Since, there were large number of vehicles plying on the non-notified route. One of the existing operator of the route in question namely Smt. Sarita Srivastava preferred a Writ Petition before this Court bearing No.897 (M/B) of 2013 calling in question the illegal plying of the vehicles on the route in question. However, despite the order passed by the Court, the enforcement staff of the transport Department could not stop the illegal plying of the vehicles on the route in question.
It is in this backdrop, it has been submitted that on 22.08.2015, the U.P. State Transport Corporation applied for 20 temporary permits on the route in question. It has further been submitted that deliberately the date of the application for the temporary permits was indicated as 21.08.2015 though the requisite court fee was only deposited on 22.08.2015 and it is further pleaded that the respondent No.3 granted ten permits in favour of the U.P. State Transport Corporation on the same day i.e. 22.08.2015 said to have been passed on a survey report, which is also said to have been conducted on 22.08.2015 which reported that there was a need of 15 additional vehicles on the route in question. The petitioners submit that there was no survey, which was ever conducted on 22.08.2015 and it was merely a paper compliance.
The grant of such additional permits was assailed before this Court by means of Writ Petition No.8672 (M/B) of 2015 wherein the order dated 22.08.2015 as well as the order dated 08.09.2015 whereby the additional permits were issued.
This Court by means of the order dated 21.09.2015 stayed the operation of the orders dated 22.08.2015 and 08.09.2015. It has further been submitted that once the order passed by this Court was placed before the respondent No.3, therefore, being infuriated it considered 20 more applications of the respondent No.4 Corporation and without considering the relevant factors, which are required to be considered, it granted 20 permanent permits in favour of the U.P. State Transport Corporation in respect of the route in question. The petitioners being aggrieved against the aforesaid grant of 20 permits vide order dated 15.10.2015, filed a revision before the State Transport Appellate Tribunal as provided under Section 90 of the Motor Vehicles Act, 1988. The revision filed by the petitioners was accompanied by an application for condonation of delay and it is stated that the Tribunal was pleased to consider the application for condonation of delay and thereafter it condoned the delay and admitted the revision.
It has further been submitted that the Corporation filed its reply to the revision to which the petitioners filed its rejoinder.
It has further been stated that the matter was finally heard and argued on 04.01.2018, however, on account of non-availability of the stenographer, the orders could not be passed on 18.06.2018 and the matter was fixed for rehearing on 17.07.2018.
On 17.07.2018, the Tribunal after hearing the arguments of the respective parties on the question of maintainability again, reserved the order and fixed on 09.08.2018 for pronouncement of the orders on the question of maintainability.
It is the case of the petitioners that the Tribunal on 09.08.2018 when the matter was only fixed for the pronouncement of the orders finding that the petitioners were not present, it dismissed the revision for default of the appearance of the petitioners. It is only on 16.08.2018 when the counsel for the petitioners appeared before the Tribunal in some other matter, it came to his knowledge that his revision was dismissed on 09.08.2018 for want of prosecution. Being surprised at the manner in which the revision was dismissed for want of prosecution, the petitioner made an application for recall of the order dated 09.08.2018 seeking restoration of the revision. The aforesaid application was moved on 20.08.2018 wherein all the facts were mentioned. The Tribunal invited objections on the restoration application and thereafter hearing the parties it rejected the application for restoration by means of the order dated 29.03.2019 holding that under the U.P. Motor Vehicles Rules, 1998, the Tribunal does not have power to restore a revision which is dismissed for want of prosecution. It is being aggrieved by the aforesaid order dated 09.08.2018 by which the revision of the petitioner was dismissed in default as well as the order dated 29.03.2019 by which his application for restoration has been rejected has been called in question in the instant petition.
A coordinate Bench of this Court after hearing the learned counsel for the parties at the initial stage on 31.05.2019 passed an order, which reads as under:-
"Heard Shri Alok Saxena, learned counsel for the petitioner, learned Additional Chief Standing Counsel for the State and Shri Ratnesh Chandra, learned counsel for the opposite party no. 4.
The writ petition is directed against an order dated 09.08.2018 passed by the Chairman, State Transport Appellate Tribunal, U.P., Lucknow by which revision of the petitioner bearing No. 53 of 2016; Smt. Saliha Begum Vs. Regional Transport Authority, Lucknow and Ors. has been dismissed for want of prosecution.
The facts which are borne out from the records are rather disturbing. What they show is that the matter was posted before the Tribunal for orders on the question of maintainability of the Revision on 09.08.2018, the hearing having been concluded earlier on 17.07.2018.
Shri Alok Saxena, learned counsel for the petitioner has placed before this Court typed copy of the order dated 17.07.2018 which mentions that the counsels have adopted the arguments made earlier, as, the matter had in fact earlier been heard and judgment was reserved on 04.01.2018 but it could not be dictated on account of absence of English Stenographer, meaning thereby, on 17.07.2018 the matter was again heard and orders were reserved on the question of maintainability and 09.08.2018 was fixed for pronouncement of the said order. Now, when the matter was taken up on 09.08.2018 it seems that the counsel for the revisionist was not present and accordingly, the revision was dismissed for want of prosecution.
This is rather surprising, coming from a Judicial Officer, who is heading the Tribunal. If the matter was fixed on 09.08.2018 for pronouncement of orders then what was required to be done by him was to pronounce the order on the question of maintainability either holding that it was maintainable or that it was not maintainable but one fails to understand as to how on 09.08.2018 if the counsels were not present the revision could be dismissed for want of prosecution. This reflects very badly on his understanding of the situation. However, before drawing any conclusive opinion in this regard, although, this matter could have been disposed of today itself, this Court deems it necessary to call for an explanation from the Chairman, State Transport Appellate Tribunal, Lucknow through the Senior Registrar of this Court, as, this is not the first case where such orders have been passed. At least in 4 or 5 cases which have come upon before this Bench, the Court finds that even after the judgments and orders have been passed by the High Court on an issue contrary view has been taken by the Tribunal going to the extent of making observations as regards the supervisory jurisdiction of the High Court. Reference may be made in this regard to the judgments passed in Writ Petition No. 6760(M/S) of 2019; Automotive Parivahan Sahkari Samiti Ltd. and Anr. Vs. State Transport Appellate Tribunal and Anr., Writ Petition No. 13400(M/S) of 2019; Inamullah Vs. State of U.P. and Ors. and Writ Petition No. 13158(M/S) of 2019; Mansoor Beg Vs. State of U.P. and Ors. After the passing of the judgment dated 09.05.2019 in Writ Petition No. 13158(M/S) of 2019 and judgment dated 10.05.2019 in Writ Petition No. 13400(M/S) of 2019 when the same were placed before the Tribunal in Revision No. 27 of 2017; Dharmednra Pandey Vs. R.T.A., Agra an order was passed on 17.05.2019 wherein it was observed - "Hon'ble High Court is supervisory authority of this Tribunal and its observations are always advisory." Any person having any understanding of what has been held by this Court in the aforesaid judgments more so a Judicial Officer could not make such an observation.
Copy of the aforesaid judgments and orders are taken on record.
It is in these circumstances specially considering the nature of the orders passed in this case that this Court is compelled to call for an explanation from the Officer. Let this order be communicated to Shri Atul Kumar Gupta, Chairman, State Transport Appellate Tribunal, U.P., Lucknow by the Senior Registrar of this Court at Lucknow at the earliest whereupon the said Chairman shall file his explanation justifying the impugned order passed in this writ petition as also the observation made in his order dated 17.05.2019 noticed hereinabove whereupon this Court would consider the matter further as to what order should be passed.
List/ put up on 04.07.2019 as fresh."
In pursuance of the aforesaid order passed by this Court, the Chairman/Presiding Officer of the State Transport Appellate Tribunal was required to send his explanation and in deference to the same, the Chairman has sent his reply dated 11.06.2019 which has been placed on record and shall be dealt with by the court later.
While the matter was engaging the attention of this Court, an opportunity was granted to the learned standing counsel to file counter affidavit, however, no counter affidavit has been filed. Accordingly, this Court has heard Shri Alok Saxena, learned counsel for the petitioner and Shri Rajesh Tiwari, learned Additional Chief Standing counsel for the State.
The issue involved in the above writ petition is whether the Tribunal could have dismissed the revision for want of prosecution on the date when it was fixed for pronouncement of orders on the question of maintainability and if the answer is no, then, whether the Tribunal was justified in rejecting the application for restoration.
It may be noted that so far as the facts are concerned, there is no dispute in between the parties nor the learned Additional Chief standing counsel could point out any discrepancy insofar as the dates or the manner in which the proceedings have been conducted before the U.P. State Transport Appellate Tribunal.
Given the aforesaid fact situation, it would be seen that under the Motor Vehicles Act, the provisions of appeal is provided under Section 89 whereas the provision of revision has been specifically provided under Section 90 of the said Act.
For the convenient perusal, the provisions of appeal and revision as provided under Sections 89 and 90 are being reproduced hereinafter:-
"Section 89. Appeals.--
(1) Any person--
(a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or
(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or
(c) aggrieved by the refusal to transfer the permit under section 82, or
(d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such countersignature, or
(e) aggrieved by the refusal of renewal of a permit, or
(f) aggrieved by the refusal to grant permission under section 83, or
(g) aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final.
[(2) The State Government shall constitute such number of Transport Appellate Tribunals as it thinks fit and each such Tribunal shall consist of a judicial officer who is not below the rank of a District Judge or who is qualified to be a Judge of the High Court and it shall exercise jurisdiction within such area as may be notified by that Government.] (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), every appeal pending at the commencement of this Act, shall continue to be proceeded with and disposed of as if this Act had not been passed.
Explanation.--For the removal of doubts, it is hereby declared that when any order is made by the State Transport Authority or the Regional Transport Authority in pursuance of a direction issued by the Inter-State Transport Commission under clause (c) of sub-section (2) of section 63A of the Motor Vehicles Act, 1939 (4 of 1939), as it stood immediately before the commencement of this Act, and any person feels aggrieved by such order on the ground that it is not in consonance with such direction, he may appeal under sub- section (1) to the State Transport Appellate Tribunal against such order but not against the direction so issued."
"90-Revision.--The State Transport Appellate Tribunal may, on an application made to it, call for the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority against which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final:
Provided that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a State Transport Authority or Regional Transport Authority, unless the application is made within thirty days from the date of the order:
Provided further that the State Transport Appellate Tribunal may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by good and sufficient cause from making the application in time:
Provided also that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard."
So far as the appeal is concerned, Section 89 of the Motor Vehicles Act, 1988 prescribes the orders against which an appeal may lie to the Tribunal. Section 89(1) provides that the appeal may be filed within the prescribed time and in the prescribed manner to the State Transport Appellate Tribunal. However, it would be relevant to note that in the section itself, the period of limitation is not mentioned. However, the Rules framed under the Act i.e. U.P. Motor Vehicles Rules, 1998 and more specifically Rule 91 which relates to the appeals against the order of the State or Regional Transport Authority.
Sub-Rule (2) of Rule 91 provides that any person aggrieved by an order referred to in sub-rule (1) may prefer an appeal within 30 days of the receipt of the order to the Chairman. Similarly, in sub-rule (6) of Rule 91, the appellate Tribunal has been conferred with the power to restore an appeal which dismissed in default or want of prosecution, on an application moved by the appellant within 15 days from the date of knowledge of the order of dismissal of the appeal.
In contradistinction to the provisions of appeal, Section 90 of the Motor Vehicles Act, 1988 relates to a revision. It would indicate that the limitation for filing a revision has been incorporated in the section itself and it states that the revision shall be filed within a period of 30 days from the date of the order and the power to condone the delay has also been provided in the section itself by the second proviso appended to the section. The third proviso has been appended to the aforesaid Section 90 which clearly states that the State Transport Appellate Tribunal shall not pass any order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.
It would be further relevant to note that so far as the revision is concerned, there is no corresponding provision contained in the Rules of 1998 in respect of conferment of power of restoring a revision for default. However, certain procedural Rules are contained in the Rules of 1998 which are applicable both in the cases of appeal or revision such as relating to substitution of a party while the procedure for an appeal is specifically provided in Rule 94.
The purpose of examining the above provisions is to ascertain the scope of the powers exercised by the Tribunal while hearing a revision.
From the perusal of the aforesaid sections, it would be clear that so far as an appeal is concerned, a specific power has been conferred under Rule 91(6) enabling the Tribunal to restore an appeal, dismissed in default. However, no such power has been conferred upon the Tribunal while hearing a revision.
As already noted above, the third proviso appended to Section 90 of the Motor Vehicles Act, 1988 specifically provides that no order would be passed which is prejudicial to a party without providing a reasonable opportunity of hearing. If this proviso has any meaning then the question would arise that on the date when the revision was fixed for pronouncement of order, which did not require any interaction of any party and was an act which was solely to be performed by the Tribunal and in that case if an order of dismissal for default i.e. other than pronouncement, was passed by the Tribunal then can it be said that the dismissing of the revision in default, order, was passed after affording reasonable opportunity of hearing or the Tribunal ought to have been guided by the said third proviso and could have exercised better and good sense and follow the principle of the revisional jurisdiction which is vested with an authority or court.
From the perusal of the provisos, it appears that the provisions of Civil Procedure Code are not applicable ipso facto before the Tribunal. However, the Tribunal may formulate its own procedure. At this very juncture, it will be further relevant to notice that in the third proviso appended to Section 90 clearly mention that the Tribunal shall not pass any order which is prejudicial to any party without giving him a reasonable opportunity of being heard.
From the record, it would reveal that it is not disputed by the State that insofar as the revision is concerned, which was before the Tribunal, it had already heard the parties on the question of maintainability and had fixed the same for passing of orders on 09.08.2018. Thus, it follows that the order which could be passed was only on the question of maintainability and there was no occasion for dismissing the revision in default.
The record further indicates that initially the revision was heard finally on 04.01.2018 and it was reserved for orders. However, the order-sheet indicates that on 18.06.2018, due to non-availability of the stenographer, the order could not be pronounced and as such the matter was fixed for rehearing on 17.07.2018. On 17.07.2018, the matter was heard again and fixed for pronouncement of orders on 09.08.2018. Apparently, it is on 09.08.2018 when the matter was fixed for pronouncement that the Tribunal rejected/dismissed the revision for want of prosecution.
The date fixed for pronouncement cannot be treated to be the date fixed for hearing and, therefore, there was no mandatory requirement of either of the parties to have been present in the Court, failing which it could have ensued punitive consequences.
In order to dismiss a petition for default, it has to be seen that on the date so fixed what was the purpose of its listing. If the matter is listed before the Authority/Court or the Tribunal wherein some hearing has to take place and thereafter if the party does not appear only then it may be possible to dismiss the petition for default but where the hearing had already concluded and there was nothing left for the parties to participate and it was only listed for pronouncement of the orders which was the act of the Tribunal itself it could not be said that the matter was listed for which the presence of the parties or their counsel was required, therefore, the dismissal of the revision on the ground that none-appeared for the parties is completely bizarre and does not follow from any settled legal proportions.
In this context, it will be gainful to refer to the observations made by the Hon'ble Apex Court in the case of Arjun Singh vs. Mohindra Kumar & Ors., AIR 1964 SC 993, which reads as under:-
"ln the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) Where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX, Rule 1 permits judgment to be delivered after an interval after the hearing is completed."
It will also be worthwhile to notice that though the CPC is not applicable but its principles can be borrowed to regulate the proceedings and can act as the hands made of justice. The language as mentioned in Order 20 Rule 1 CPC especially in words "The Court, after the case has been heard, shall pronounce the judgment .... may be noticed". Where the suit is fixed for hearing it implies that the matter is pending and the some hearing has to take place whereas in the instant case it would be found that the hearing had already concluded and the orders were to be pronounced and the date when the order is pronounced, it does not come within the meaning of the suit or the proceedings being fixed for hearing.
A judgment can only be pronounced after the case is heard. Hearing of a suit, means hearing at which the Judge would take evidence or consider the question involved in the suit which will enable it to give its judgment and finally decide the controversy. The hearing comes to an end when the suit is posted for judgment, where it is reserved. The stage of judgment only comes after completion of arguments. Once the hearing is concluded then there is no hearing between reservation of judgment and pronouncement thereof.
After conclusion of hearing, nothing remains to be done and the parties have no right or privilege to file any application or to do anything in the matter.
Thus, where the proceedings were not fixed for hearing, there was no requirement of the parties to appear and in any case under such circumstances, it did not vest any power with the Tribunal to dismiss the revision in default. Thus, this Court has no hesitation to hold that so far as the order dated 09.08.2018 is concerned, the same was passed in excess of jurisdiction vested by the Tribunal and accordingly, the same cannot withstand judicial scrutiny.
Now in the above backdrop, it is to be seen that once the application for restoration was made under the aforesaid circumstances, the Tribunal ought to have considered the application for recall/restoration and ought to have allowed the same since the order of the dismissal was not on account of absence of the petitioners but was apparently on account of mistaken notion of law haboured by the Tribunal. It is equally settled that no person can be penalized for the act of a Court the latin maxim Actus Curiae Neminem Gravabit, the act of Court shall harm no one.
Thus, so far as the restoration is concerned, it ought to have been allowed and it was not open for the Tribunal to take umbrage of the fact that there is no provision either in the act of 1988 or the Rules of 1998 by which a revision could be restored which was dismissed in default. At this juncture, it would further be relevant to note that this exercise of power by the Tribunal in refusing to restore the revision which was dismissed on 09.08.2018 is bad for one more reason that where the Act or Rules did not permit the Tribunal to dismiss the revision in default, then having done so is nothing but an apparent mistake on the part of the Tribunal which it ought to have rectified on its own, especially once it was brought to its notice.
This aspect of the matter can be seen from another angle. The revisional jurisdiction is vested in a superior Court or Tribunal which enables it to call for and examine the record of any proceedings or order of a subordinate authority, to satisfy itself as to the regularity of such proceedings or the correctness, legality or propriety of an order or decision and it may pass orders accordingly.
The Apex Court in the case of Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, reported in (2014) 9 SCC 78 had the occasion to consider the difference between the appellate and revisional jurisdiction and after noticing a large number of authorities, it noticed as under:-
"28. ... Conceptually, revisional jurisdiction is a part of appellate jurisdiction but it is not vice versa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statutes. No party to the proceeding has an inherent right of appeal or revision. An appeal is continuation of suit or original proceeding, as the case may be. The power of the appellate court is coextensive with that of the trial court. Ordinarily, appellate jurisdiction involves rehearing on facts and law but such jurisdiction may be limited by the statute itself that provides for the appellate jurisdiction. On the other hand, revisional jurisdiction, though, is a part of appellate jurisdiction but ordinarily it cannot be equated with that of a full-fledged appeal. In other words, revision is not continuation of suit or of original proceeding. When the aid of Revisional Court is invoked on the revisional side, it can interfere within the permissible parameters provided in the statute. It goes without saying that if a revision is provided against an order passed by the Tribunal/appellate authority, the decision of the Revisional Court is the operative decision in law. ...
29. With the above general observations, we shall now endeavour to determine the extent, scope, ambit and meaning of the terms "legality or propriety"; "regularity, correctness, legality or propriety"; and "legality, regularity or propriety" which are used in the three Rent Control Acts under consideration:
29.1. The ordinary meaning of the word "legality" is lawfulness. It refers to strict adherence to law, prescription, or doctrine; the quality of being legal.
29.2. The term "propriety" means fitness; appropriateness, aptitude; suitability; appropriateness to the circumstances or condition conformity with requirement; rules or principle, rightness, correctness, justness, accuracy.
29.3. The terms "correctness" and "propriety" ordinarily convey the same meaning, that is, something which is legal and proper. In its ordinary meaning and substance, "correctness" is compounded of "legality" and "propriety" and that which is legal and proper is "correct".
29.4. The expression "regularity" with reference to an order ordinarily relates to the procedure being followed in accord with the principles of natural justice and fair play."
Thus, in view of the above, the Tribunal was required to examine the correctness of the order impugned and once the matter was fixed for pronouncement of judgment, it could not have dismissed the revisions for default.
There can be no manner of doubt that the Tribunal completely erred in passing the order dated 09.08.2018 dismissing the revision in default especially when it was fixed for pronouncement of orders and it committed a further mistake in refusing to restore the same especially when the restoration was solely necessitated on account of the mistake of the Tribunal.
At this juncture itself, it will be apposite to mention that the Coordinate Bench of this Court by means of the order dated 31.05.2019 had called for an explanation from Shri Atul Kumar Gupta, Chairman, U.P. State Transport Appellate Tribunal. In furtherance of the order passed by this Court, Shri Atul Kumar Gupta, Chairman, U.P. State Transport Appellate Tribunal, Lucknow has furnished his explanation dated 11.06.2019 which has been considered by this Court.
Upon considering the same, it can be said that a person who is heading the Tribunal as its Chairman and is of the rank of a District Judge, who occupies such a seat is aware or rather he ought to be aware of the powers and jurisdiction of the High Court both in terms of Articles 226 and 227 of the Constitution of India. Any order passed by the High Court whether under Article 226 or under Article 227 of the Constitution, so far as the subordinate judiciary is concerned, is binding on it and thus the observation made by him in his judicial order is apparently indicative of the fact that the Chairman is harbouring wrong notions of law which is not expected of a Senior Judicial Officer holding the rank of an Officer of the District Judge level.
Lately, the Full Bench of this Court in the case of Smt. Rinki vs. State of U.P. & Ors., reported in 2019 (10) ADJ 631 (LB) (FB) after considering Articles 141 and 144 of the Constitution of India has held that in this country we follow a hierarchical system of Court where the orders of the higher court must give way to the opinions of the authorities in the lower rank of such hierarchy. The relevant portion is being reproduced hereinafter:-
"13. There cannot be any quarrel that by operation of Article 141 of the Constitution of India whatever is laid down by Hon'ble Supreme Court becomes law of the land and that its decision are binding on all. The law laid down by Hon'ble Supreme Court is applicable to every person including those who are not parties to that order.
28. Now coming to the first question referred to us by Hon'ble Single Judge, we may observe that in our constitutional scheme though Hon'ble Supreme Court and the High Courts are both courts of record and this Court is not a Court subordinate to the Supreme Court, however the provisions of constitution, especially the appellate jurisdiction assigned to Supreme Court, give a superior place to the Supreme Court over High Courts in the hierarchy. So far as the appellate jurisdiction vested in the courts in our country is concerned, in all matters, civil and criminal, Supreme Court is the highest court of appeal and it is the final interpreter of law. Under Article 141, the law declared by the Supreme Court is final and is binding on all courts including this Court. Under Article 144, all authorities, civil and judicial, which would include High Courts as well, are to act in aid of the Supreme Court. In the hierarchical judicial system envisaged by our Constitution, the Supreme Court is placed over the High Courts vertically. As a superior forum it has the jurisdiction to annul or modify or affirm any order or judgment which may be rendered by this Court. The corrective jurisdiction inherently encompasses in its fold power to issue direction to be followed by and is binding on the forum below. Any failure on the part of lower forum to obey or carry out such directions issued by higher forum may lead to destruction of the hierarchical system in administration of justice.
33. Reflecting upon the necessity of accepting the decisions of higher courts by the courts of lower tier in the hierarchical system of courts, the Hon'ble Supreme Court in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd and others, reported in (1985) 1 SCC 260 has observed as under:-
"We desire to add and as was said in Cassel and Co. Ltd. v. Broome we hope it will never be necessary for us to say so again that 'in the hierarchical system of Courts' which exists in our country, 'it is necessary for each lower tier', including the High Court, 'to accept loyally the decisions of the higher tiers'. "It is inevitable in a hierarchical system of Courts that there are decisions of the Supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary...............But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted". The better wisdom of the Court below must yield to the higher wisdom of the Court above. That is the strength of the hierarchical judicial system. In Cassel & Co. Ltd. v. Broome, commenting on the Court of Appeal's comment that Rookes v. Barnard was rendered per incuriam Lord Diplock observed:
"The Court of Appeal found themselves able to disregard the decision of this House in Rookes v. Barnard by applying to it the label per incuriam. That label is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate court or to the right of a judge of the High Court to disregard a decision of the Court of Appeal."
It is needless to add that in India under Article 141 of the Constitution the law declared by the Supreme Court shall be binding on all courts within the territory of India and under Article 144 all authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court.""
From the above, it would be clear that in order to bring in certainty and judicial discipline, it is obvious that we follow the aforesaid system and adhere to the same.
Before parting with the matter, it may only be observed that this Court shall be failing in its duty if the learned Presiding Officer of the Tribunal is not reminded of his duty to follow the law as declared by this Court without any exception and that this Court under its jurisdiction under Article 227 of the Constitution of India is not only vested with the authority of exercising superintendence over the subordinate judiciary but it also exercises corrective jurisdiction. The Court, thus, in all earnest, expects that the Presiding Officer of the Tribunal shall be more cautions in future.
In view of the above discussion, this Court has no hesitation to hold that both the orders passed by the Tribunal dated 09.08.2018 and 29.03.2019 are perverse and suffer from non-application of judicial mind and have been passed against the settled legal principles of law, emanating from Articles 226 and 227 of the Constitution of India and thus are liable to be quashed.
Accordingly, the writ petition succeeds. The impugned the order dated 29.03.2019 passed in Misc. Case No.66/2018 and the order dated 09.08.2018 passed in Revision No.53/2016 contained in Annexure Nos.1 and 2 with the writ petition are quashed and set aside. The matter i.e. Revision No.53/2016 shall stand restored on the board of the Tribunal, who shall hear the matter afresh after giving a reasonable opportunity of hearing to the parties and then decide the same in accordance with law. The costs are made easy.
Order Date :- 10.12.2019 Rakesh/-