Karnataka High Court
Panchaxari Shidramappa Yeligar vs Shiggaon Taluka Shikshana Samithi And ... on 14 October, 1998
Equivalent citations: 2000(5)KARLJ174
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER R.V. Raveendran, J.
1. In this writ petition, the petitioner has challenged the order passed by the Educational Appellate Tribunal, Dharwad, on an appeal filed under Section 8 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 ('the Act' for short).
2. From 1989, orders of Educational Appellate Tribunals have been challenged by filing revision petitions under Section 115 of the Code of Civil Procedure, having regard to the decision of a Full Bench of this Court in the case of Excellent Education Society and Others v Smt. G. Shahida Begum and Others.
3. A learned Single Judge of this Court in the case of Excellent Education Society and Others v Smt. G. Shahida Begum and Others, and connected cases had considered the question whether an order of the Educational Appellate Tribunal should be challenged by filing a civil revision petition or by filing a writ petition. By order dated 16-6-1987, he held that such orders are revisable under Section 115 of the Civil Procedure Code and therefore writ petitions to challenge such orders were not maintainable and directed the Registry to treat all such writ petitions as civil revision petitions. The said order was challenged in W.A. Nos. 1101 to 1103 of 1987. The Division Bench by order dated 5-9-1988 referred the matter to a Full Bench, having regard to the important question of law that arose for consideration. The question referred to the Full Bench was:
"Whether a revision under Section 115 of the Code of Civil Procedure would lie against the order of a District Judge functioning as the Educational Appellate Tribunal under the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975?"
4. The Full Bench after detailed consideration of the matter and reference to the relevant provisions of the Act, by order dated 30-5-1989, answered the question in the affirmative, by holding that the District Judge, functioning as the Educational Appellate Tribunal, under the proviso to sub-section (2) of Section 10 of the Act does not cease to be a Court subordinate to the High Court and that any order passed by him in appeal is amenable to the jurisdiction of the High Court under Section 115 of the Code of Civil Procedure.
5. Recently, the same question was considered by a learned Single Judge of this Court in the case of Hungund Taluka Ranjara Vidyavardhaka Sangha v Rachappa Chanamallappa and Others. The learned Single Judge, after referring to the relevant provisions of the Act, held that the Educational Appellate Tribunal is not a. Court subordinate to the High Court and therefore the orders passed by such Tribunals were not amendable to the revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure. When the decision of the Full Bench in Excellent Education Society's case, supra, was brought to his notice, the learned Single Judge held that the said decision of the Full Bench was rendered per incuriam and, therefore, incorrect and not binding.
6. The learned Single Judge held that the attention of the Full Bench was not invited to Section 8 of the Act which provides that appeals against the order of the Management shall lie to the Educational Appellate Tribunal constituted under Section 10; nor to Section 10 which provided that the Educational Appellate Tribunals constituted by the State Government, by notification, shall consist of one person who is or has been a Judicial Officer not below the rank of a District Judge; nor to Section 11 which barred the jurisdiction of Civil Courts in respect of any matter in relation to which the Educational Appellate Tribunals were empowered by the Act, to exercise any powers; and therefore, the decision of Full Bench was rendered per incuriam and is not a binding precedent.
7. But the Full Bench had in fact examined the relevant provisions of the Act. The following observations of the Full Bench make this clear:
"An analysis of Section 10 of the Act would show that the State Government by notification shall constitute one or more Educational Appellate Tribunals for the adjudication of appeals preferred under Section 8 of the Act and where more than one Tribunal is constituted, the State Government shall specify in the notification the limits to which the territorial jurisdiction of each Tribunal extends. Under sub-section (2), the constitution of the Tribunal is prescribed i.e., that it shall consist of one person who is or has been a judicial officer not below the rank of District Judge; in this very sub-section it is specified, by way of a proviso, that pending constitution of the Educational Appellate Tribunal under sub-section (1), the District Judge of each district shall function as the Educational Appellate Tribunal of the district.
There is no dispute that as per sub-section (1) of Section 10 of the Act, no Educational Appellate Tribunal has been constituted by the State Government and that in all cases it is the District Judge of each District who is functioning as the Educational Appellate Tribunal of the District. In view of this admitted fact, the controversy lies in a very narrow compass as we are not required to decide the status of a Tribunal which has, by a notification, been constituted by the State Government under sub-section (1). What is required to be seen is whether a District Judge functioning as the Educational Appellate Tribunal, is a Court subordinate to the High Court, so as to make his orders amenable to the revisional jurisdiction of the High Court under Section 115 of the CPC.
On giving our thoughtful consideration to the entire matter, we find that, in the circumstances of the case, the answer to the question referred to us obviously has to be in the affirmative".
(emphasis supplied) The Full Bench specifically considered the effect of the relevant provisions of law. The Full Bench considered the position of the District Judges acting as E.A. Tribunals under the proviso to Section 10(2). It made it clear that it was not deciding the status or position of E.A. Tribunals constituted by the State Government, by notification under Section 10(1) of the Act. It proceeded on the basis that the position of two types of Tribunals were distinct and different. On the other hand the learned Single Judge in Hungund's case, supra, considered the position of the E.A. Tribunal constituted by the State Government by notification under Section 10(1) and the position of District Judges acting as Tribunals under the proviso to Section 10(2) of the Act and held that they were no different. Be that as it may.
8. Should I follow the decision of the Full Bench? Or should I follow the decision of the learned Single Judge, in view of his having held that the decision of the Full Bench is not binding as it is rendered per incuriam? This raises the point as to whether a Single Judge of a High Court can ignore the decision of a Full Bench of the same Court by holding that it had been rendered per incur/am. The answer to this question can be obtained by analysing and answering the following questions:
(i) Whether a decision of the Full Bench is binding on a Single Judge of the same Court?
(ii) Whether a decision rendered per incuriam is not binding as a precedent?
(iii) Whether a Court below (Court in a lower tier) can hold that a decision of the Court above (Court in the higher tier) is rendered per incuriam?
(iv) Whether a Single Judge of a High Court can be said to be a Court below (or in a lower tier) vis-a-vis a Division Bench on Full Bench of the same Court?
9. Before venturing to find the answers to those questions, a brief reference to the need for adherence to precedents may be appropriate. The need for binding nature of precedents arises from the need to have certainty, uniformity and consistency in matters relating to law. If Judges with diverse philosophies and backgrounds, are to decide matters in accordance with their own concepts and views on justice, equity, fairness morality and decency, without conforming to any uniform and settled standards or patterns, the resulting uncertainty and divergence may endanger the very foundation of rule of law. Even under the French legal system, which does not recognise the rule of precedents (where the statutes are supposed to cover every conceivable situation, where the law specifically bars a Judge from laying down any general principles while rendering a decision, and where a Judge is not bound by any single decision of any co-ordinate or Higher Court), the Judges ascertain the trend of decisions on a particular point of law and apply it to the case. Under Indian legal system, the ratio decidendi of every decision of the co-ordinate Benches and larger Benches of the same High Court and of the Supreme Court are binding on a Bench of the High Court. It is apposite to refer to what Benjamin N. Cardozo stated in the Nature of the Judicial Process (pages 143, 149 and 150) to emphasize the need for adherence to precedents:
"No doubt the ideal system if it were attainable, would be a code, at once so flexible and so minute, as to supply in advance for every conceivable situation, the just and fitting rule. But life is too complex to bring the attainment of this ideal within the compass of human powers. . . . the labour of Judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by the others who had gone before him.... It happens again and again, where the question is a close one, that a case which one week is decided one way might be decided another way the next, if it were then heard for the first time. The situation would, however, be intolerable if the weekly changes in the composition of the Court were accompanied by changes in its rulings. In such circumstances, there is nothing to do except to stand by the errors of our brethren of the week before, whether we relish them or not".
Re: Question No. (i)
10. As a Full Bench is above a Single Judge and a Division Bench, within framework of a High Court, the decisions of the Full Bench are binding on Division Benches and Single Judges. This position is clear from several decisions of the Supreme Court, a few of which are referred below.
10.1 In Jai Kaur and Others v Sher Singh and Others, the Supreme Court held:
"Though a Full Bench decision may not state in so many words that certain cases were wrongly decided, when a Full Bench decides a question in a particular way, every previous decision which had answered the same question in a different way cannot but be held to have been wrongly decided. A subsequent Division Bench cannot disagree with a previous decision of the Full Bench of the same Court. . . . The concept of judicial decorum and legal property require that the decisions of the larger Benches must be accepted by Judges of the Court and pleas not dealt or considered by a Bench should be presumed to have been considered by larger Benches while delivering the judgment. If any Bench has any doubt about the legal position arising out of the judgments of a larger Benches, the proper course in that event, as pointed out earlier, is to refer the matter to a larger Bench".
10.2. In the case of Jaisri Sahu v Rajdewan Dubey and Others, the Supreme Court observed, while referring to a decision, which ignored an earlier decision of the same Court directly applicable, that "law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason by conflicting decisions".
10.3. In the case of Kamalammal and Others v Venkatalakshmi Ammal and Another, the Supreme Court while allowing an appeal against the judgment of a learned Single Judge of the Madras High Court observed thus:
"Before concluding, it is necessary to advert to one feature which would be apparent even from our narrative. There was a decision of the Full Bench which interpreted the texts and laid down the law on the topic and it is somewhat surprising that the learned Single Judge of the Court thought it proper to refuse to be bound by that judgment and proceeded on his own line of reasoning based on authorities, several of which were discussed by the Full Bench, relying merely on the statement by the Editor of Mayne's Hindu Law that the decision required reconsideration. We cannot but deprecate this practice as it destroys the certainty of the law which the theory of judicial precedent seeks to establish. Not merely convention but rules framed by several High Courts require that where a learned Single Judge or a Division Bench does not agree with a Full Bench decision he or they either make a reference to the Full Bench or place the papers before the Chief Justice for such a reference being made. But that was not, however, what the learned Single Judge did in the present case. He took the unusual step of practically overruling the Full Bench and refusing to be bound by it".
10.4 In the case of Tribhovandas Purshottamdas Thakkar v Ratilal Motilal Patel and Others, the Supreme Court had occasion to consider the decision of a learned Single Judge who had held that the judgment of a Full Bench may be ignored by a Single Judge, if the judgment of the Full Bench is given on a reference made on a question of law arising in a matter before a Single Judge or Division Bench. The Supreme Court held:
"The observations made by the learned Judge subvert the accepted notions about the force of precedents in our system of judicial administration. Precedents which enunciate rules of law form the foundation of administration of justice under our system. It has been held time and again that a Single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court. The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law".
Hence, the first question has to be answered in the affirmative. Re:
Question No. (ii)
11.1 The binding nature of precedent is, of course, subject to several well-known exceptions. Some of the recognised exceptions to the rule of stare deems, where a decision will not be binding as a precedent are: (a) when there is a subsequent statutory modification at variance with the decision; (b) a different view being taken by Courts in higher tiers, subsequently; (c) where a decision is found to have been rendered per incuriam, that is, in ignorance or oversight of relevant statutory provisions, or binding decisions of Courts in higher tiers; (d) where a decision which passes sub-silentio, that is when the particular point of law involved in the decision is not perceived by the Court or present to its mind. In this case, we are concerned with the exception falling under the category of decisions given per incuriam. In Hundgund's case, supra, the learned Single Judge has relied on two decisions in this behalf and I will refer to them.
11.2 In the case of AM. Antulay v R.S. Nayak and Another, the Supreme Court cited with approval the following statement of the principle relating to decisions rendered per incuriam from Morelle Limited v Wakeling:
"As a general rule, the only cases in which decisions shall be held have been given 'per incuriam' are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurence".
11.3 In the case of Municipal Corporation of Delhi v Gurnam Kaur, the Supreme Court held that a decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. In regard to concept of sub-silentio, the Court cited the following passage from Salmond on Jurisprudence (12th Edition, page 153) with approval, after observing decisions "sub-silentio" were those which are decided without argument, without reference to the crucial words of the rule, and without citation of authority and were not binding as precedents:
"A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour, but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B, point B is said to pass sub-silentio".
11.4 Thus, it is clear that an otherwise binding precedent will not be binding if it can be held that the decision was rendered per incuriam, that is it was rendered in ignorance of a statute or rule having the force of statute; or having known the statute, it did not have in its mind, the precise terms of the statute or did not appreciate the relevance of the statute to the case on hand. The second question is answered in the affirmative.
Re: Question No. (iii) 12.1 While some of the exceptions to the rule of stare decisis can be applied to all decisions which can be called as precedents, some, like the exception based on per incuriam Rule can be applied only in regard to decisions of co-ordinate Benches of the same Court, and not to decisions of larger Benches of the same Court or the Apex Court. While a decision rendered per incuriam by a co-ordinate Bench may not be binding as a precedent, a Court in a lower tier (smaller Bench) cannot refuse to follow the ratio decidendi of a decision rendered by the Court in a higher tier (larger Bench of the same Court or the Apex Court) by stating that such decision is rendered per incuriam. Let me refer to some of the decisions on this aspect.
12.2 In the case of Ballabhdas Mathuradas Lakhani and Others v Municipal Committee, Malkapur, the Supreme Court held that the High Court could not ignore a decision of the Supreme Court because it thought that the relevant provisions were not brought to the notice of Supreme Court.
12.3 The following observations of the Supreme Court in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal v Dunlop India Limited and Others, are clinching:
"We desire to add and as was said in Cassel and Company Limited 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. (see observations of Lord Hailsham and Lord Diplock). 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's case, supra, commenting on the Court of Appeals' 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 case, supra, 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". "
(emphasis supplied) 12.4 In the case of Eaton Baker v The Queen, the Privy Council observed as follows:
"Strictly speaking the per incuriam rule as such, while it justifies a Court which is bound by precedent in refusing to follow one of its own previous decisions (Young v Bristol Aeroplane Company Limited ) does not apply to decisions of Courts of appellate jurisdiction superior to that of the Court in which the rule is sought to be invoked Cossel's case, supra. To permit this use of the per incuriam rule would open the door to disregard of precedents by the Court of inferior jurisdiction by the simple device of holding that decisions of superior Courts with which it disagreed must have been given per incuriam".
12.5 In the case of H. Muniswamy Gowda v Management of KSRTC and Another, the learned Chief Justice, speaking for the Division Bench of this Court while stressing the need for Single Judges in follow the decisions of the Full Bench, reiterated the position that the hierarchical system of Courts prevalent in our country mandates upon each lower tier including the High Court to accept loyally the decisions of the higher tiers.
12.6 Question No. (iii) is therefore answered in the negative.
Re: Question No. (iv) 13.1 The provisions of the Karnataka High Court Act, 1961, regulate the business and exercise of power of the High Court in relation to administration of justice. Section 4 of the Act provides that an appeal from a judgment or order passed by a Single Judge in the exercise of the original jurisdiction of the High Court shall lie to and be heard by a Bench consisting of two other Judges of the High Court. Section 7 provides that where in any proceeding pending before it, any question of law or usage having the force of law arises, a Bench consisting of not less than two Judges of the High Court may, if it thinks fit, and shall if it differs from the view taken by a similar Bench of the High Court on the said question, refer to a Full Bench of the High Court, the question of law or usage having the force of law; and the decision of the majority of Judges comprising a Full Bench of the High Court shall be the decision of the High Court. A Full Bench can thus overrule, reverse or modify the decision or view of a Single Judge or Division Bench. But, a Single Judge cannot reverse or modify the decision of a Division Bench or a Full Bench. It is true that a Single Judge, a Division Bench and a Full Bench are all constituents of the High Court and each is the 'High Court' and a Single Judge is not 'subordinate' to the Division Bench or Full Bench; nor is the Division Bench or Full Bench a superior Court with reference to a Single Judge. But the Bench of a Single Judge is a Court below a Division Bench and a Division Bench is a Court below a Full Bench, in the ascending series of degrees of power and authority, with the correlative subjection, each to the one next above in the hierarchial system contemplated under the Karnataka High Court Act, 1961.
13.2 In the case of Ladli Parshad Jaiswal v The Karnal Distillery Company Limited, Karnal and Others, the Supreme Court held that where an appeal lies from the judgment of a Single Judge to a Division Bench of the High Court, the Single Judge will be a Court below the Division Bench, but not a Court subordinate to the Division Bench. The distinction is brought out as under:
"A Court subordinate to the High Court is a Court subject to the superintendence of the High Court, whereas a Court immediately below is the Court from whose decision, the appeal has been filed".
13.3 It should however be noted that the terms 'Court below' or 'lower tier in the hierarchy" can be used only while referring to Benches of different sizes of the same High Court, and not while referring to any Judge vis-a-vis another Judge of the same High Court. Those terms can be used only when referring to a 'Bench of a Single Judge' vis-a-vis 'the Division Bench or the Full Bench' and a 'Division Bench' vis-a-vis a 'Full Bench', in the context of the power of the larger Bench to modify, reverse or affirm the decision of the smaller Bench. The hierarchy exists with reference in the different size of the Benches and not among the individual Judges constituting the Benches of the High Court. The difference is clearly brought out by a Full Bench of this Court in the case of State of Karnataka v H. Krishnappa, as follows:
"The Single Judge being regarded as a Court below the Division Bench which hears the appeal from his decision, is a necessary incident of the concept of the appellate jurisdiction which consists of powers to examine the correctness of the decision appealed against and to reverse, modify and affirm it, just as a Full Bench of the High Court has power to examine the correctness of a ruling of a Division Bench or a Single Judge of the same High Court and to overrule such ruling.
Judges of the High Court while exercising different jurisdiction, have different powers. The appellate jurisdiction of the High Court over the original jurisdiction exercised by Single Judges of the High Court and the power of the Full Bench to overrule the rulings of Division Benches or Single Judges of the same High Court do not imply the existence of any watertight compartments among the Judges of the High Court or any hierachical tiers or strata of Judges in the High Court. A Judge exercising the original jurisdiction in one case, may sit in a Division Bench exercising appellate jurisdiction in another case and may sit in a Full Bench in yet another case. Thus the appellate jurisdiction conferred by Section 4 of the High Court Act, 1961, does not bring about any alteration in the constitution or organisation of the High Court".
13.4 In A.R. Antulay's case, supra, the Supreme Court noticed the difference between the position in England and India in regard to co-ordinate Benches. In England, the size of the Bench does not matter and irrespective of the number of Judges constituting the Bench, all Benches of the same Court are co-ordinate Benches. But in India there is a hierarchy within the Court itself and larger Benches overrule or site in appeal over smaller Benches.
13.5 Hence, the term 'co-ordinate Bench' means, with reference to a High Court in India, Bench with equal number of Judges and not a larger Bench. Consequently hierarchically speaking, there are usually three tiers - Bench of the Single Judge is below the Division Bench, which in turn is below the Full Bench. Hence question (iv) is answered in the affirmative.
Conclusion:
14. Hence a Single Judge of the High Court cannot refuse to follow the decision of a Division Bench or of Full Bench of the same Court, by holding that such decision was rendered per incuriam. Consequently, with great respect to the learned Single Judge, who rendered the decision in Hungund's case, supra, it has to be held that the decision of the Full Bench in Excellent Education Society's case, supra, can not be avoided and the Single Judges will have to follow the said decision.
15. Having reached the conclusion that the decision of the learned Single Judge, cannot be followed, I gave anxious thought to the question whether judicial propriety requires reference to a Division Bench. I found that the answer is in the negative, for the following reasons:
15.1 The decision of the learned Single Judge in Hungund's case, supra, has itself been rendered per incuriam having failed to notice the hierarchical system of Benches under the Karnataka High Court Act, 1961 and having not followed the binding decisions of the Supreme Court in Lakhani's case, supra and Dunlop India's case, supra, and the decision of the Division Bench in Muniswamy's case, supra.
15.2 The ratio of the decision in Hungund's case, supra, is that revision under Section 115 of the CPC does not lie against the order of the District Judge functioning as E.A. Tribunal under the proviso to Section 10(2) of the Act. That question is the subject-matter of the decision of the Full Bench and is specifically answered by the Full Bench, by holding that a Revision under Section 115 of the CPC lies against the order of E.A. Tribunal. If I have to examine the question whether a revision under Section 115 of the CPC lies against the order of the E.A. Tribunal, afresh and want to differ with the reasoning given in Hungund's case, supra, propriety may require reference to a Division Bench. But, I have only decided whether I should follow the decision of the Full Bench or follow the decision of the learned Single Judge. In other words, I am neither examining the question afresh, nor proposing to take a view different from that of a co-ordinate Bench. The only question that arises before me, as stated above, is whether I should follow the decision of the Full Bench, or the decision of the learned Single Judge. The discussion above, will amply demonstrates that I am bound to follow the decision of the Full Bench.
15.3 I therefore, find it unnecessary to refer the matter to a Division Bench.
16. So long as the decision of the Full Bench in Excellent Education Society's case, supra, holds the field, the challenge to the orders of the Educational Appellate Tribunals can only be by filing civil revision petitions and not by filing writ petitions. It has however to be made clear that the decision of the Full Bench applies only to decisions rendered by District Judges functioning as E.A. Tribunals of the District under the proviso to sub-section (2) of Section 10 and may not apply to Tribunals constituted by the State Government, by notification under Section 10(1) of the Act or Section 130 of the Karnataka Education Act, 1983.
17. In the result, the office is directed to treat this petition as a civil revision petition and register it as a civil revision petition. Refund of excess Court fee paid, is allowed.