Kerala High Court
Narayani Krishnan vs The Union Of India on 11 January, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
W. A. No. 1663 of 2020 -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
WA.No.1663 OF 2020
AGAINST THE JUDGMENT IN WP(C) 29076/2010(H) OF HIGH COURT OF
KERALA
APPELLANT/S:
NARAYANI KRISHNAN
AGED 82 YEARS
W/O. KRISHNAN, MULLASSERIVELI, CHARAMANGALAM,
MUHAMMA P.O, CHERTHALA, ALAPPUZHA
BY ADV. SMT.NAMITHA JYOTHISH
RESPONDENT/S:
1 THE UNION OF INDIA
SECRETARY MINISTRY OF HOME AFFAIRS, NEW DELHI
PIN 110 001
2 THE STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, GENERAL, ADMINISTRATION DEPARTMENT,
SECRTARIAT, THIRUVANNANTHAPURAM, PIN 695 001
R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
OTHER PRESENT:
SRI.P.VIJAYAKUMAR, ASG FOR R1, SRI.TEK CHAND,
SR GP FOR R2
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W. A. No. 1663 of 2020 -2-
"C.R"
JUDGMENT
Dated this the 11th day of January, 2021 S. Manikumar, CJ Instant writ appeal is filed challenging the judgment in W.P. (C) No. 29076 of 2010 dated 01.11.2018, by which, a learned Single Judge, dismissed the writ petition.
2. W.P. (C) No. 29076 of 2010, was filed by the appellant/writ petitioner challenging Exhibit-P8 order passed by the Union of India, Secretary to the Government, Ministry of Home Affairs, respondent No.1, dated 28.04.2010, whereby, her claim for freedom fighters family dependent pension, Swatantrata Sainik Samman (S.S.S.) Pension Scheme, 1980, is rejected.
3. According to the appellant, her husband was an activist, who had taken part in Punnapra Vayalar Struggle. On account of the same, he was arrayed as an accused in a criminal proceedings on the file of the Special Magistrate Court, Alappuzha, and that a warrant in that case was issued to him, by the court concerned.
He was arrested and kept in the Sub Jail, Alappuzha, for 11 months from December, 1946 to October, 1947.
4. Later, the appellant's husband died. At the time when her husband was alive, Punnapra Vayalar Struggle was not recognized W. A. No. 1663 of 2020 -3- by the Union Government, as eligible for grant of Freedom Fighters' Pension under the Central Scheme.
5. Later, Punnapra Vayalar movement was also recognized as part of the National Freedom Movement, in order to be eligible for grant of Freedom Fighters Pension under the Central Scheme.
6. Thereafter, the appellant filed Exhibit-P1 application dated 11.05.1998 for grant of freedom fighter's family dependent pension under the Central Scheme. Earlier, during the life time of appellant's husband, he was awarded Freedom Fighters Pension, under the State Scheme by the Principal Secretary to the Government, General Administration Department, Government Secretariat, Thiruvananthapuram, 2nd respondent, on account of his participation in Punnapra Vayalar movement.
7. To substantiate the claim that her husband suffered imprisonment, for not less than the minimum prescribed period of six months, appellant submitted Exhibits-P3 and P4 Co-prisoner Certificates dated 03.07.1974 and 25.09.2009 respectively, issued by one former Minister in the State Government and an Ex. MLA.
8. Appellant has submitted that these evidence of incarceration of her husband were brushed aside by the Secretary, Ministry of Home Affairs, New Delhi, 1st respondent and thus, W. A. No. 1663 of 2020 -4- rejected her claim, on the grounds that the Co-prisoner Certificate submitted is unreliable and that the State Government has not recommended the grant of pension.
9. After considering the rival submissions and material on record, a learned Single Judge, dismissed W. P. (C) No. 29076 of 2020 as under:-
"7. The Division Bench of this Court in the judgment in Union of India v. Subhadra reported in [2016 (2) KLT 1 (W.A. No. 2538/2015 dated 11.6.2010), has held in paragraph 14 thereof that in order that the person who has issued with Personal Knowledge Certificate (PKC) under the Central Scheme to be eligible to issue such certificate, he should have suffered actual imprisonment for not less than two years without any remission etc. The said dictum laid down by this Court in the context of the requirement of eligibility to issue Personal Knowledge Certificate (PKC) would also apply with equal vigour in the case of eligibility to issue Co-Prisoner Certificate (CPC). It is beyond dispute that, as per the Governing norms under the Central Scheme, a certifier to issue Co-Prisoner certificate should have necessarily suffered one year's actual imprisonment without any remission, apart from the fact that he should have been awarded the freedom fighters' pension under the Central Scheme. In the light of these aspects, it is only to be held W. A. No. 1663 of 2020 -5- that the stand taken by the respondents regarding the unacceptability of Ext. P-4 certificate is correct, in as much as the certifier was not eligible to issue such certificate. Hence, the impugned proceedings at Ext. P8 etc, does not deserve any legal interdiction. In that view of the matter, it is ordered that the writ petition (Civil) will stand dismissed."
(emphasis supplied)
10. Being aggrieved, instant writ appeal is filed on the ground that the learned Single Judge went wrong in finding that Exhibit-P8 order dated 28.04.2010 does not require any legal interdiction and failed to take note of Exhibit-P3 certificate issued by a co-prisoner, who was a Minister in the State Government as well.
11. Appellant has contended that the learned Single Judge ought to have found that the only objection raised by the respondent was with regard to Exhibit-P3 certificate, that it was not in proper format. Such a contention is highly technical and is, therefore, to be rejected.
12. Appellant has also contended that since the appellant had produced sufficient and satisfactory secondary evidence regarding the incarceration of her husband, the respondent ought to have granted her pension, and failure to interfere with the order impugned in the writ petition by the learned Single Judge, calls for W. A. No. 1663 of 2020 -6- interference.
13. Appellant has further contended that the learned Single Judge ought to have found that no valid reason has been stated by the State Government for not recommending grant of pension to her. It is submitted that going by the Scheme, recommendation of the State Government is not binding on the Central Government and that the latter can take a decision, independent of the opinion take by the State Government.
14. When the matter came up for hearing, Ms. Namitha Jyotish, learned counsel for the appellant, made submissions on the grounds raised and reiterated that as per the Swatantra Sainik Samman (S.S.S.) Pension Scheme, 1980, in the absence of primary evidence, secondary evidence has to be produced.
Appellant has produced Exhibits-P3 and P4 certificates dated 03.07.1974 and 25.09.2009 issued by the then Minister for Transport, and Mr. P. A. Solomon, Ex. M. P. respectively. She further submitted that the same ought to have been considered by the respondents. However, she fairly submitted that Exhibit-P3 could not be submitted in the proper format, for the reason that the certifier had passed away.
15. Heard the learned counsel for the appellant and perused W. A. No. 1663 of 2020 -7- the material on record.
16. Before adverting to the contentions, let us have a cursory look at the salient features of Swatantrata Sainik Samman Pension Scheme 1980, which is extracted hereunder:
"SALIENT FEATURES OF SWATANTRATA SAINIK SAMMAN PENSION SCHEME, 1980 During the Silver Jubilee year of Independence, a Central Scheme for grant of pension to freedom fighters and their eligible dependents (Where freedom fighters have already passed away) was introduced by Government of India with effect from 15.08.1972. In 1980, the Scheme was liberalized and renamed as "Swatantrata Sainik Samman Pension Scheme, 1980" (the Scheme) and made effective from 01.08.1980. Several provisions of the Original Scheme have been modified and clarified since then through different orders and circulars of the Government of India. Salient features of the basic provisions of the Scheme as amended up to date, are as follows:
2. Who is eligible for Samman Pension:-
All the persons who participated in the freedom movement in some way or the other are not eligible for Samman Pension. Only following category of freedom fighters are eligible for the Samman Pension under the Scheme subject to furnishing of the specified evidences:-
2.1 Eligible dependents of martyrs:-A martyr is a person who died or who was killed in action or in detention or was awarded capital punishment due to participation in the freedom struggle of India. Relevant documents from official records and newspapers of the relevant time are considered as evidence in such cases.
2.2 Imprisonment:- A person who had suffered minimum imprisonment of six months (3 months in case of women, SC/ST freedom fighters) on account of participation in freedom struggle subject to furnishing of the following evidences:-
(a) Imprisonment/detention certificate from the W. A. No. 1663 of 2020 -8- concerned jail authority, District Magistrate or the State Govt. indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release.
(b) In case records of the relevant period are not available, the secondary evidences in the form of 2 co-prisoner certificates (CPC) from freedom fighters who have proven jail suffering of minimum 1 year and who were with the applicant in the jail could be considered provided the State Government/ Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that documentary evidences from the official records in support of the claimed sufferings were not available. In case the certifier happens to be a sitting or Ex. M.P./ M.L.A., only one certificate in place of the two is required.
2.3 Underground:- A person who on account of his participation in freedom struggle remained underground for more than six months provided he was;
A. a proclaimed offender; or B. one on whom an award for arrest was announced; or C. one for whose detention order was issued but not served. Explanation:
Voluntary underground suffering or self-exile suffering for party work under command of the party leaders, are not covered as eligible sufferings under the Scheme.
The claim of underground suffering is considered subject to furnishing of the following evidence:-
(a) Documentary evidence by way of
Court/Government's orders proclaiming the
applicant as an absconder, announcing an award on his head or for his arrest or ordering his detention.
(b) In case records of the relevant period are not available, secondary evidence in the form of a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum two years and who happened to be from the same administrative unit could be considered provided the State Government/Union Territory Administration W. A. No. 1663 of 2020 -9- concerned, after due verification of the claim and its genuineness, certifies that documentary evidences from the official records in support of the claimed suffering were not available.
2.4 Internment/Externment:- A person who, on account of participation in the freedom struggle, was interned in his home or externed from his district for a minimum period of 6 months is eligible subject to furnishing of order of internment or externment issued by the competent authority, from official records. In absence of the official records, NARC from the State Govt./ UT Administration concerned, along with a certificate from prominent freedom fighter, who had proven jail sufferings of at least two years; who belonged to the same administrative unit and whose area of operation was same as that of the applicant, should be furnished.
2.5 Loss of property:- A person whose property was confiscated or attached and sold due to participation in the freedom struggle is eligible subject to furnishing of orders of confiscation and sale of property, provided that the persons whose property was restored are not eligible for Samman Pension.
2.6 Permanent incapacitation:- A person who on account of participation in freedom struggle, became permanently incapacitated during firing or lathi charge subject to furnishing of:-
(a) certificate from the District Magistrate stating that permanent incapacitation was done by bullet injury/lathi charge sustained during participation in the National Freedom Struggle, and
(b) Medical certificate from the Civil Surgeon in support of the handicap.
2.7 Loss of Government Job:- A person who lost his Govt. job for participation in freedom struggle is eligible subject to furnishing of orders of dismissal or removal from service. However, persons who were reinstated in service before expiry of two years from their dismissal or removal from service and were in receipt of benefits or pay and allowances are not eligible.
2.8 Canning/Flogging/Whipping:- A person who was awarded the punishment of 10 strokes of caning/flogging/whipping due to his participation in freedom W. A. No. 1663 of 2020 -10- struggle is eligible subject to furnishing of copies of orders passed by the competent authority from official records.
3. Procedure Persons who consider themselves eligible for Samman Pension under the Scheme and desire the Samman Pension, should apply in duplicate on the prescribed application form. The application, duly filled in and supported with required documents as proof of claim of suffering, should be sent to the Chief Secretary of the Concerned State Government/Union Territory Administration. A copy of such application should be sent to the Deputy Secretary to the Government of India, FF Division, MHA, New Delhi as an advance copy. However, claims can be processed by the Central govt. only on receipt of verification & entitlement to pension report from the State Govt./U.T. Administration concerned. In case the requirements of the Scheme are fulfilled, Samman pension is granted to the applicant.
4. Acceptability of Secondary Evidence Secondary evidence can be considered only if supported by a valid Non-Availability of Records Certificate (NARC). The provisions of the Scheme were clarified to the State Governments in several circulars of the Govt. of India, gist of which is available in the Appendix attached herewith. The Instructions on NARC were reiterated by the Govt. of India, Ministry of Home Affairs, vide Circular No. 8/12/95-FF (P) dated 2.11.98, relevant extracts of which are reproduced as follows:-
"As per the scheme, claims of the applicants for samman pension are required to be supported by the duly verified official records of the relevant times. Only in case of non- availability of such records, secondary evidence, as specified in the scheme, can be made based on such claims. However, due care and caution is required in such cases in view of several instances of bogus/ forged claims which have come to the notice of the Central Government. It is of utmost importance that before recommending such cases, complete facts of the case in which the applicant claims involvement, are verified from all the agencies which could have been concerned with the matter. These may include the police station concerned, the District administration, the jurisdictional court, competent authority W. A. No. 1663 of 2020 -11- issuing detention order, the advisory board/appellate court, prison authorities, and intelligence agencies. Discrete enquiry should also be made to ascertain genuineness of the claims. The NARC should be issued only after the above verification. It is reiterated that the NARC should invariably be worded as follows:
All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and It is confirmed that the official records of the relevant time are not available. "
17. Exhibit-P8 order dated 28.04.2010 passed the Deputy Secretary to the Government of India, impugned in the writ petition, reads thus:-
"File No 52/CC/K/65/2010-FF(SZ) Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya Lok Nayak Bhawan, Khan Market, New Delhi - 110 003, Dated the 28th April, 2010. To Dr. P. Prabhakaran Additional Chief Secretary, General Administration & Fisheries Department, Government of Kerala, Thiruvananthapuram - 695 001, Kerala.
Subject:- Grant of pension under the Swatantrata Sainik Samman Pension Scheme, 1980 - Compliance of judgment dated 22nd January, 2010 in Writ Petition (C) No. 2248 of 2010 (E) filed by Smt. Narayani Krishnan, W/O late M.S. Krishnan - regarding.
Sir, I am directed to refer to the above mentioned subject and to state that in its judgment dated 22nd January, 2010, Hon'ble High Court of Kerala has directed the State W. A. No. 1663 of 2020 -12- Government to forward the application along with annexures and verification-cum-entitlement to the pension report of the petitioner to the Central Government.
2. In compliance of the aforesaid order, State Government vide letter No. 4940/FFP.A2/2010/GAD dated 24th March, 2010 has furnished verification report. The petitioner has claimed her late husband's imprisonment suffering from December, 1946 to October, 1947 in Case No. PE.7/1122 ME at Sub Jail, Alappuzha in connection with Punnapra Vayalar Struggle. In support of her claim, the petitioner has produced two Co-prisoner Certificates from S/Shri M.N. Govindan Nair, Ex. Minister and PA Solomon.
3. As per the provisions of the S.S.S. Pension Scheme, 1980, a person who on account of his participation in freedom struggle remained in jail for six months or more is eligible for pension. The relevant provision S.S.S. Pension Scheme is as follows:-
Imprisonment Suffering:
A person who had suffered minimum imprisonment of six months (3 months in case of women, SC/ST freedom fighters) on account of participation in freedom struggle subject to furnishing of the following evidence:-
(a) Primary Evidence:- Imprisonment/detention certificate from the concerned jail authority, District Magistrate or the State Government indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release.
(b) Secondary Evidence:- In case records of the relevant period are not available, secondary evidence in the form of 2 co-prisoner certificates (CPCs) from freedom W. A. No. 1663 of 2020 -13- fighters who have proven jail suffering of minimum 1 year and who were with the applicant in the jail could be considered provided the State Government/Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that the documentary evidence from the official records in support of the claimed suffering are not available. In case the certifier happens to be a sitting or ex.M.P./M.L.A., only one certificate in place of the two is required.
Where records of the relevant period are not available, a Non-Availability of Record Certificate (NARC) from the concerned authority could be considered as secondary evidence. The NARC should not be general or vague and should confirm to the instructions issued by the Government of India, Ministry of Home Affairs. The instructions, inter-alia, require the State Governments to issue NARC only after due verification from all sources. The NARC is treated valid only when it is furnished by the State Government in the following manner:-
"All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available."
The claims of Central Samman Pension can be considered by the Central Government only when these are duly verified and recommended by the State Governments/Union Territory Administrations concerned in accordance with the provisions of the Scheme. As per the W. A. No. 1663 of 2020 -14- Scheme, the verification and recommendation report of the State Government is mandatory in view of the fact that the evidence of the claims are in the possession of the State Governments/Union Territory Administrations concerned and not of the Central Government. However, it is also to mention that the Central Government has to keep all documents/reports/ evidence in view and to take a decision strictly in accordance with the eligibility criteria and evidentiary requirements of the Central Scheme. A positive recommendation of the State Government is, therefore, not binding on the Central Government (if the claim does not satisfy the eligibility criteria and evidentiary requirements prescribed in the Central Scheme)
4. The claim of Smt Narayani Krishnan, W/o late M.S. Krishnan has been examined in compliance of the directions of the Hon'ble High Court keeping in view the report of the State Government, documents on record and the applicable provisions of the Swatantrata Sainik Samman (S.S.S.) Pension Scheme, 1980. On perusal of the available records it is found that the petitioner Smt. Narayani Krishnan, W/o late M.S. Krishnan is not eligible for grant of dependent family Pension due to the following shortcomings/ discrepancies:
(i) She has not submitted any acceptable record-based primary evidence, duly verified by the State Government, in support of her late husband's claimed imprisonment suffering.
(ii) In the absence of primary evidence, Non availability of Records Certificate (NARC) has to be issued by the State Government after making enquiries from all W. A. No. 1663 of 2020 -15- sources, who may have such records which establish the imprisonment suffering of the applicant's husband.
No such certificate has been issued by the State Government or the petitioner.
(iii) In case of imprisonment suffering, the applicant is required to submit two Co-prisoner Certificates (CPCs) from prominent freedom fighters who have proven jail suffering of minimum one year and who were with the applicant in the jail. These CPCs are accepted only when these are supported along with a valid NARC. Since the petitioner has not produced valid NARC under the provisions of the Scheme, the CPCs are also not acceptable and cannot be the basis for sanction of pension. Even otherwise certificate issued by Shri M.N. Govindan Nair is not in the prescribed format. Shri P.A. Solomon, Ex MP has imprisonment suffering less than one year and as such he is not an eligible certifier. Moreover, he has been found to be issuing such certificates indiscriminately and the same cannot be relied upon. In any case, these CPCs cannot be accepted in the absence of the valid NARC. The secondary evidence has to be reliable enough to induce a reasonable belief that the applicant fulfills the eligibility conditions of the Scheme. The CPCs cannot be taken to be always genuine conclusive proof for granting pension under the Central pension Scheme. Further, it cannot be denied that the CPCs can be obtained without much effort.
W. A. No. 1663 of 2020 -16-(iv) State Government vide its letter No. 4940/FFP.A2/2010/GAD dated 24th March, 2010 has not recommended the claim.
5. In the given circumstances, the claim of Smt. Narayani Krishnan, W/o late M.S. Krishnan does not meet the eligibility criteria and evidentiary requirements of the Swatantrata Sainik Samman Pension Scheme, 1980. It is, therefore, regretted that Smt. Narayani Krishnan, W/o late M.S. Krishnan is not eligible for grant of dependent family pension under the Swatantrata Sainik Samman Pension Scheme, 1980. Hence, her claim is, hereby rejected.
6. It is requested that this decision may please be communicated to Smt. Narayani Krishnan, W/o late M.S. Krishnan, under intimation to this Ministry.
7. This issues with the approval of the competent authority Yours faithfully, (D.K. Goel) Deputy Secretary to the Government of India"
18. As per the provisions for grant of the Swatantra Sainik Samman (S.S.S.) Pension Scheme, 1980, the applicant is required to submit two Co-prisoner Certificates from prominent freedom fighters, who have proven jail suffering of minimum one year and who were with the applicant in the jail. These Co-prisoner Certificates are accepted only when these are supported with a valid NARC.
19. As per the law of precedents, a learned Single Judge is bound to follow the law laid down by a Larger Bench. On this W. A. No. 1663 of 2020 -17- aspect, we consider the following decisions:
(i) A Full Bench of the Gujarat High Court in State of Gujarat v.
Gordhandas Keshavji Gandhi reported in AIR 1962 Guj 128, has considered the question as to the binding nature of judicial precedents. K. T. Desai, CJ. in his judgment, observed:
"Judicial precedents are divisible into two classes, those which are authoritative and those which are persuasive. An authoritative precedent is one which judges must follow whether they approve of it or not. It is binding upon them. A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration and to which they will attach such weight as they consider proper. A persuasive precedent depends for its influence upon its own merits.... A decision of a High Court Judge of a State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding on Judges of the same High Court sitting singly in the High Court. A decision of a Full Bench, i. e. a Bench of at least 3 Judges of a High Court is considered binding on all Division Benches of the same High Court.... A decision of a High Court Judge sitting singly is not legally binding on another Judge of the same High Court sitting singly. So also a decision of a Division Bench of a High Court is not legally binding on another Division Bench of the same High Court. A decision of a Full Bench is not legally binding on another Full Bench of the same Court. One Judge of a High Court has, however, no right to overrule the decision of another Judge of the same High Court nor has one Division Bench of a High Court the legal right to overrule another decision W. A. No. 1663 of 2020 -18- of a Division Bench of the same High Court.... The rule that a court should follow the decision of another Court of coordinate jurisdiction is subject however to several exceptions which have been dealt with in Salmond's Jurisprudence, 11th Edn. at page 199 to 217.
(1) A decision ceases to be binding if a statute or statutory rule inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher court.
(2) A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute.
(3) A precedent loses its binding force if court that decided it overlooked an inconsistent decision of higher court.
(4) xx xx xx xx xx (5) Precedents sub silentio are not regarded as authoritative. A decision passed sub silentio when the particular point of law involved in the decision is not perceived by the Court or present to its mind."
(ii) In Sundaradas Kanyalal Bhathija v. The Collector, Thane reported in AIR 1991 SC 1893, the law is stated thus:
"17. It would be difficult for us to appreciate the judgment of the High Court. One must remember the pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be W. A. No. 1663 of 2020 -19- referred to a larger Bench. It is subversion of judicial process not to follow this procedure."
(iii) In S.I.P. Corporation of Tamil Nadu Ltd. v. Arputharaj, [(1991) 469 MLJ 1], a Hon'ble Division Bench of the Madras High Court reiterated the law of precedents in the following words:
"In such a contingency, sitting as we do, as Judges of a Division Bench of this Court, we are bound by the interpretation and preference given by the Full Bench of this Court. This will be in consonance with the decorum of our judicial functioning. It is well settled that an interpretation (and equally a misinterpretation) by a larger Bench of the High Court, of a decision or decisions of the Supreme Court is binding on a smaller Bench of the same Court, and the latter cannot refuse to follow the decision of larger Bench, on the ground that the larger Bench has wrongly understood or construed the decisions of the Supreme Court. Taking note of this principle, we are obliged to hold that the appellants could not be held to have locus standi to prefer and prosecute these writ appeals."
(iv) A Hon'ble Division Bench of Bombay High Court in CIT v. Thana Electricity Supply Ltd., [(1994) 206 ITR 727 (Bombay)], held as follows:
"(a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein.W. A. No. 1663 of 2020 -20-
(b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction.
(c) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court may be summed up as follows:
(i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. If he does not find himself in agreement with the same, the proper procedure is to refer the binding decision and direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench to examine the question (see Food Corporation of India v. Yadav Engineer and Contractor AIR 1982 SC 1302).
(ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench.
(iii) Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions.
(d) The decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its own territorial jurisdiction. It is well settled that the decision of a High Court will have the force of binding precedent only in the State or territories on which the court W. A. No. 1663 of 2020 -21- has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, at best, have only persuasive effect."
(v) Single Judge is bound by the opinion of the Division Bench. Merely because some other view may also be possible, cannot be the basis to question settled legal position. Such an approach is not only counterproductive but also against the public policy. [See : Farooq Mohammad v. State of M.P., [AIR 2016 MP 10 (FB)].
20. That apart, decision of a Hon'ble Division Bench of this Court in Union of India v. Subhadra and Others reported in 2016 (2) KLT 1, is also binding on us, in the light of the following decisions:
"(i) In Eknath Shankarrao Mukkawar v. State of Maharashtra [(1977) 3 SCC 25], the Hon'ble Supreme Court held as under:
"25. Our attention is drawn to a disquieting feature in the procedure adopted by the learned single Judge (G. N. Vaidya, J.) in disposing of the appeal. The learned Judge ignored the decision of another single Judge of the same Court (J. M. Gandhi, J.) who had earlier held in a similar case that the appeal by the State was not competent under Section 377(1) Cr.P.C. It is true that the decision is pending before this Court in appeal by special leave. That, however, cannot be sufficient reason for the learned Judge to ignore it and observe that it is "unnecessary to keep back this matter till the Supreme Court decides the matter". When there was a decision of a co-ordinate court, it was open to the learned Judge to differ from it but in that case the only judicial alternative was to refer it to a larger bench and not to dispose of the appeal by taking a contrary view. Judicial discipline as well as decorum should suggest that as the only course. "W. A. No. 1663 of 2020 -22-
(ii) In State of Tripura v. Tripura Bar Association and Ors. [(1998) 5 SCC 637], the Hon'ble Supreme Court held as under:
"4. We are of the view that the Division Bench of the High Court which has delivered the impugned judgment being a coordinate Bench could not have taken a view different from that taken by the earlier Division Bench of the High Court in the case of Durgadas Purkayastha (Supra). If the latter Bench wanted to take a view different than that taken by the earlier Bench, the proper course for them would have been to refer the matter to a larger Bench. We have perused the reasons given by the learned Judges for not referring the matter to a larger Bench. We are not satisfied that the said reasons justified their deciding the matter and not referring it to the larger Bench. In the circumstances, we are unable to uphold the impugned judgment of the High Court insofar as it relates to the matter of inter se seniority of the Judicial Officers impleaded as respondents in the writ petition."
(iii) In S.I. Rooplal and Ors. v. Lt. Governor Through Chief Secretary, Delhi and Ors. [(2000) 1 SCC 644], the Hon'ble Supreme Court held thus:
"12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law from the foundation of W. A. No. 1663 of 2020 -23- administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bounded by the enunciation of law made by the superior courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuvandas Purshottamdas Thakur v. Ratilal Motilal Patel [AIR 1968 SC 372] while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same court observed thus:
"The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J., If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhai's case [1962 (3) Guj LR 529] and of Macleod, C.J., in Haridas's case (AIR 1922 Bom 149(2) : 23 Bom LR 802) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C.J., observed in Lala Shri Bhagwan and Another v. Shri Ram Chand and Another (AIR 1965 SC 1767).
It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re- considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice W. A. No. 1663 of 2020 -24- to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."
13. We are indeed sorry to note the attitude of the tribunal in this case which, after noticing the earlier judgment of a coordinate Bench and after noticing the judgment of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the latter Bench of the tribunal in this case, a lot of valuable time of the Court is wasted and parties to this case have been put to considerable hardship.
14. In our opinion, the above error on the part of the tribunal in the normal course should have made us remand this case to the tribunal to be decided by a larger Bench of the tribunal to decide the issue involved in this case, but then taking into consideration the time already consumed by this case and cost and inconvenience suffered by the parties concerned because of the above referred indiscretion of the tribunal we think in the interest of justice we should put to rest the controversies involved in these appeals."
(iv) In Lily Thomas v. Union of India, reported in (2000) 6 SCC 244, the Hon'ble Supreme Court, reiterated the principle that rulings of Larger Bench should be followed and those of Coordinate Bench of equal strength not to be different from and most be followed.
(v) In Rajasthan Public Service Commission and Ors. v. Harish Kumar Purohit and Ors. [(2003) 5 SCC 480], the Hon'ble Supreme Court after considering a three- Judge Bench decision in State of Tripura v. Tripura Bar Association and Ors. (AIR 1999 SC 1494), held thus:
W. A. No. 1663 of 2020 -25-"13. Before parting with the case we would like to point out one disturbing feature which has been brought to our notice. On 13.12.2001 a Division Bench dismissed an application containing identical prayers. Even before the ink was dry on the judgment, by the impugned judgment, another division Bench took a diametrically opposite view. It is not that the earlier decision was not brought to the notice of the subsequent Division Bench hearing the subsequent applications. In fact, a reference has been made by the submissions made by the Commission where this decision was highlighted. Unfortunately, the Division Bench hearing the subsequent applications did not even refer to the conclusions arrived at by the earlier Division Bench. The earlier decision of the Division Bench is binding on a Bench of coordinate strength. If the Bench hearing matters subsequently entertains any doubt about the correctness of the earlier decision, the only course open to it is to refer the matter to a larger Bench.
14. xx xx xxx
15. In the instant case, the position is still worse. The latter Bench did not even indicate as to why it was not following the earlier Bench judgment though brought to its notice. Judicial propriety and decorum warranted such a course indicated above to be adopted."
(vi) In Jayaswals Neco Limited v. Commissioner Of Central Excise, Nagpur, [(2007) 13 SCC 807], the Hon'ble Supreme Court observed thus:
"10. Assuming even if it were to disagree with the test laid down in Hindustan Gas and Industries case! in order to maintain the judicial propriety in decision-making, the Tribunal ought to have referred the matter to a larger Bench, which it did not do. ........................................"
(emphasis supplied) W. A. No. 1663 of 2020 -26-
(vii) In fact, the Hon'ble Supreme Court has criticized the decisions of Coordinate Benches, which have not followed the earlier judgments by another Coordinate Bench. Hon'ble Supreme Court in Official Liquidator v. Dayanand and others, [(2008) 10 SCC 1], wherein at paragraph Nos.90 and 91, held thus:-
"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor differences in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institutions and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigor by the members of the judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution W. A. No. 1663 of 2020 -27- and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law."
(viii) Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. [See Pradip Chandra Parija v. Pramod Chandra Patnaik, reported in (2003) 7 SCC 01, at paras 6 and 7; followed in Union of India v. Hansoli Devi, reported in (2002) 7 SCC 01, at para 2.] But, no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores, reported in AIR 1966 SC 1686 and K.K. Narula, reported in AIR 1967 SC 1368, both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority.
(ix) In Royal Orchid Hotels Limited and Ors. v. G. Jayarama Reddy and Ors. [(2011) 10 SCC 608], the Hon'ble Supreme Court observed as under:
"34. That apart, we find it extremely difficult, if not impossible, to approve the approach adopted by the learned Single Judge in dealing with Writ Petition Nos. 2379 and 2380 of 1993 filed by the brothers of Respondent No. 1. He distinguished the judgments of the Division Bench in Mrs. Behroze Ramyar Batha and Ors. v. Special Land Acquisition Officer (ILR 1991 KAR 3556) and Smt. H.N. Lakshmamma and Ors. v. State of Karnataka and Ors. (Writ Appeal No.2605 of 1991 decided on 3.10.1991) without any real distinction and did W. A. No. 1663 of 2020 -28- not adhere to the basic postulate of judicial discipline that a Single Bench is bound by the judgment of the Division Bench. Not only this, the learned Single Judge omitted to consider an order dated 3.10.1991 passed in Writ Petition Nos. 19812 to 19816 of 1990. Annaiah and Ors. v. State of Karnataka and Ors. (Writ Petition Nos.19812 to 19816 of 1990 decided on 3.10.1991) in which the same Division Bench had quashed notifications dated 28.12.1981 and 16.4.1983 in their entirety.
35. Unfortunately, the Division Bench of the High Court went a step further and dismissed the writ appeals filed by the brothers of Respondent No. 1 without even adverting to the factual matrix of the case, the grounds on which the order of the learned Single Judge was challenged and ignored the law laid down by the coordinate Bench in three other cases. The special leave petitions filed by the brothers of Respondent No. 1 were summarily dismissed by this Court. Such dismissal did not amount to this Court's approval of the view taken by the High Court on the legality of the acquisition and transfer of land to private persons. In this connection, reference can usefully be made to the judgment in Kunhayammed v. State of Kerala [(2000) 6 SCC 359]."
21. Writ court has also considered that Sri. P. A. Solomon had suffered imprisonment in Alappuzha Sub-Jail, only for the period from February to December, 1947, i.e. 9 months. As per the Scheme, the period of imprisonment should be one year.
22. Admittedly, Exhibit-P3 certificate issued by Sri. M. N. Govindan Nair, Minister for Transport and Electricity, Kerala, dated 03.01.1974 was not in the prescribed format. Certificates W. A. No. 1663 of 2020 -29- produced in complete form alone can be treated as a certificate. In such a view of the matter, it cannot be said that the respondents have committed a mistake.
23. Writ court has also considered the judgment in W. P. (C) No. 791 of 2013 and connected cases dated 30.05.2018, wherein it is held that Sri. P. A. Solomon is not an eligible certifier, as per the Central Scheme to issue certificates.
24. The appellant, who seeks for the grant of Swatantrata Sainik Samman Pension Scheme, 1980, has to produce the required certificates as per the Scheme. On the above aspect, let us consider a few decisions.
(i) In Union of India (UOI) v. Mohan Singh and Ors. reported in 1996 (6) SCALE 783, the Hon'ble Supreme Court observed thus:
"4. This Court in Mukund Lal Bhandari and Ors. v. Union of India and Ors. [1990 CriLJ 2148] had held, as regards the sufficiency of the proof, that the Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinize the documents which according to the petitioners they had produced in support of their claim, and pronounce upon their genuineness. It is the function of the Government to do so. We would, therefore, direct accordingly."
(ii) In Union of India v. Bikash R. Bhowmik and Ors.
W. A. No. 1663 of 2020 -30-reported in (2004) 7 SCC 722, the Hon'ble Supreme Court held as under:
"Learned Additional Solicitor General appearing on behalf of the Union of India relied upon two decisions of this Court viz., Mukund Lal Bhandari v. Union of India [1990 CriLJ 2148] and Union of India v. Mohan Singh (cited supra) to the effect that pension could be sanctioned only as per proof as required in the Pension Scheme and in no other manner. We think there is great force in the submission made by the learned Additional Solicitor General. We find that the High Court could not have travelled beyond the Pension Scheme to find that there was substantial compliance with the prerequisites as to suffering of imprisonment. In order to get the benefit of the Pension Scheme, the proof required must be as provided in the Pension Scheme itself. As long as such proof was not available, the benefit could not have been granted. Therefore, we set aside the order by the High Court and dismiss the writ petition filed by Respondent 1. The appeal is allowed accordingly."
(iii) In Union of India (UOI) v. K. Indrasena Reddy and Ors. reported in (2007) 14 SCC 305, the Hon'ble Supreme Court held thus:
"10. A person is entitled to the benefit of the Samman Pension Scheme provided he fulfills the criteria laid down therein. One of the criteria laid in the said scheme, as noticed herein before, was W. A. No. 1663 of 2020 -31- that the concerned person on account of his participation in the freedom struggle, had to remain underground for more than six months. However, the same would be subject to the conditions laid down therein, namely,
(i) he has to be a proclaimed offender; or
(ii) he is one on whom an award for arrest was announced; or
(iii) he is one for whose detention, an order of arrest was issued but not served."
25. Giving due consideration to the pleadings and material on record, we are of the view that the appellant has not made out a case for interference with the impugned judgment.
In the light of the above, this writ appeal is dismissed.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE