Allahabad High Court
Bishop Johnson School And College ... vs The Presiding Officer, Industrial ... on 2 March, 2007
Equivalent citations: 2007(2)AWC1711
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri A.D. Saunders, learned Counsel appearing for the petitioner.
2. By this writ petition, the petitioner has prayed for a writ of mandamus directing the Industrial Tribunal not to proceed with Adjudication Case No. 61 of 2006 (Shree Nath v. Bishop Johnson School and College, Allahabad) pending before him till such time as the Hon'ble Supreme Court decides the reference made in the case of State of U.P. v. Jai Bir Singh.
3. Brief facts of the case necessary to be noted for deciding the issue raised in the writ petition are; petitioner is a minority educational institution. A reference has been made by order dated 15th June, 2004 by the Additional Labour Commissioner, U.P., Allahabad as to whether the termination of services of respondent No. 3 with effect from 10th January, 2004 is valid or not. On the basis of the reference Adjudication Case No. 61 of 2004 has been registered before the Industrial Tribunal, which is proceeding with the adjudication of the said case. A written statement has been filed by the petitioner before the Industrial Tribunal taking the plea that the petitioner's educational institution is not an industry, hence adjudication cannot proceed. In the written statement it was stated that earlier judgment of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978) 2 S.C.C. 3213 has been referred by another Constitution Bench judgment of the Apex Court in State of U.P. v. Jai Bir Singh , hence till the reference is decided by the Apex Court the adjudication before the Industrial Tribunal be stayed. The petitioner's case is that in spite of the said written statement and objection having been taken by the petitioner, the Industrial Tribunal is proceeding with the adjudication and has not stayed the proceedings. This writ petition has been filed by the petitioner praying for the abovementioned relief.
4. Sri A.D. Saunders, learned Counsel for the petitioner, submitted that in view of the earlier Constitution Bench judgment in Bangalore Water Supply's case (supra), the term "Industry" as defined in the Industrial Disputes Act, 1947 included the educational institutions also but the correctness of such view has been doubted by another Constitution Bench Judge in State of U.P. v. Jai Bir Singh's case (supra) and the matter has been referred for consideration to the Larger Bench. He submits that in view of the doubt expressed by another Constitution Bench in the above case, the Industrial Tribunal cannot proceed with the adjudication on the premise that the law declared by the Supreme Court in Bangalore Water Supply's case (supra) is a good law.
5. I have considered the submissions of counsel for the petitioner and perused the record.
6. The issue, which has been raised in this writ petition, is as to whether the law laid down by the Apex Court is not to be followed in case the correctness of said judgment is doubted by another coordinate Bench and a reference has been made to consider the said judgment by Larger Bench. The question is as to whether by reference made to a Larger Bench for consideration of a judgment of Supreme Court, the said judgment is denuded of its authority as laid down in Article 141 of the Constitution and as to whether the said law is not to be followed till the reference is answered. Article 141 of the Constitution lays down that the law laid down by the Apex Court shall be binding on all courts within the territory of India. By virtue of Article 141 of the Constitution the law declared by the Supreme Court is binding. The Apex Court in C.N. Rudramurthy v. K. Barkathulla Khan and Ors. made following observations in paragraph 6:
6. ...Indeed it is a matter of judicial discipline that requires that when this Court states as to what the law on the matter is, the same shall be binding on all the courts within the territory of India. This mandate of Article 141 of the Constitution is not based on any doctrine of precedents, but is an imprimatur to all courts that the law declared by this Court is binding on them. If that is so, it was not open to the High Court to consider the effect of the decisions in Rattan Arya case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in D.C. Bhatia case. The clear pronouncement made by this Court in Shobha Surendar case was that D.C. Bhatia case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision, the High Court's decision was upset in another matter where the High Court had followed the Padmanabha Rao case. In effect, Padmanabha Rao case stood impliedly overruled. Thus, it was not at all open to the High Court to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court. The law declared by this Court is clear that D.C. Bhatia case was applicable to the provisions of the Karnataka Rent Control Act. So it was not open to the learned Judge to take any other view in the matter. Thus we are of the view that the direction issued by the High Court to the parties to work out their remedies under the Rent Control Act is not at all correct.
7. The Apex Court in several Constitution Benches has laid down that a co-ordinate Bench cannot take a contrary view to law declared. The only course open to a co-ordinate Bench, if it doubts the correctness of earlier Bench, is to refer the matter for consideration by a Larger Bench as has been held in Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors.. Another Constitution Bench in Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. laid down following in paragraph:
12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree of dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.
8. The present is a case where a co-ordinate Bench in State of U.P. v. Jai Bir Singh's case (supra) doubted the correctness of earlier judgment in Bangalore Water Supply's case (supra). The submission of counsel for the petitioner is that since the correctness of earlier judgment has been doubted the Tribunal cannot proceed treating the earlier judgment in Bangalore Water Supply's case (supra) as good law. The Apex Court in the Constitution Bench judgments, as noted above, has laid down that a co-ordinate Bench cannot overrule or take away the efficacy of a law declared by a co-ordinate Bench and it is a larger Bench which can overrule an earlier Bench judgment. In case the submission of counsel for the petitioner is accepted that merely on expressing the doubt about the correctness of judgment of earlier co-ordinate Bench, the earlier judgment is not a good law and need not be followed throughout the territory of India, the question would be that which law will govern in the interregnum period till reference is answered. In case the earlier law is not to be followed then what law is to be followed during that period?. The consistency is the cornerstone of the administration of justice. It is with a view to achieve consistency in judicial pronouncements. The doctrine of Stare decisis has been developed which again is a principle based on public policy. Accepting the submission of the petitioner that the earlier law is not to be followed till reference is answered, there will be confusion and chaos. The law of land declared by the Supreme Court continues till it is expressly overruled. The Apex Court in Prakash Amichand Shah v. State of Gujarat and Ors. had occasion to consider a case where the question arose as to whether the judgment of the Apex Court in State of Gujarat v. Shantilal Mangaldas is still a good law although observations were made in several judgments that it was 'virtually overruled' or 'in substance overruled'. In paragraph 31 following observations were made:
Expressions like 'virtually overruled' or 'in substance overruled' are expressions of inexactitude. In such circumstances, it is the duty of a Constitution Bench of this Court which has to consider the effect of the precedent in question to read it over again and to form its own opinion instead of wholly relying upon the gloss placed on it in some other decisions....
9. Considering the various cases in the same paragraph, i.e., paragraph 31 of the judgment, the Apex Court laid down following:
... We cannot upset the Mangaldas's case when no subsequent Constitution Bench has expressly overruled it. We do not therefore find any substance in the contention that the Act violated Article 31(2) of the Constitution as it stood at the time when the Act was enacted or at any time thereafter.
10. Thus merely by expressing doubt with regard to a judgment Of coordinate Bench the value of the earlier judgment as precedent or as a binding law cannot be said to be taken away. The law declared by Apex Court is binding under Article 141 of the Constitution on all Courts and this Court is bound to follow the said law till it is expressly overruled. Merely expression of doubt regarding correctness is only a ground for reference to a Larger Bench which might consider it and there are both possibility of it being overruled and it being affirmed. Thus on a reference made of an earlier judgment in Bangalore Water Supply's case (supra), it cannot be said that the said judgment is not the law of land today and the proceedings should be stayed before the Industrial Tribunal till the reference is answered by the Apex Court. To accept such prayer of the petitioner will not in accordance with the law nor expedient or in accord with the public policy.
11. In view of the foregoing discussions, the submission made by the petitioner in this writ petition cannot be accepted. The relief claimed by the petitioner in the writ petition cannot be granted.
12. The writ petition lacks merits and the same is dismissed.