Patna High Court - Orders
Suman Kumar Sinha vs The Dakshin Bihar Gramin Bank on 31 August, 2021
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14317 of 2019
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Suman Kumar Sinha
... ... Petitioner
Versus
The Dakshin Bihar Gramin Bank
... ... Respondents
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Appearance :
For the Petitioner : Mr. Prashant Sinha, Advocate
For the Respondents : Mr. Chittaranjan Singh, Senior Advocate
Mr. Siddhartha Prasad, Advocate
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL ORDER
11 31-08-2021A coordinate Bench of this Court in case of Birendra Kumar Vs. The Dakshin Bihar Gramin Bank (earlier known as Madhya Bihar Gramin Bank) & Ors., reported in 2020(3) PLJR 480, upon examination of various provisions of Madhya Bihar Gramin Bank (Officers & Employees) Service Regulations, 2010 (hereinafter referred to as the 'Regulations') has opined that a person having been compulsorily retired by way of punishment before the effective date of the Regulations coming into force (i.e. 2nd November, 2018) shall not be entitled for pension under the provisions of the said Regulations. Paragraphs 11 and 12 of the decision in case of Birendra Kumar (supra) read thus :
"11. The petitioner has been awarded with a major punishment of compulsory retirement dated 19.10.2016 after a full-fledged enquiry proceedings, Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 2/13 which till date has not been interfered with by any authority. The said order of punishment compulsorily retired the petitioner much prior to the "effective date" under Regulation 31 of the 2018 Regulations. The expression "effective date" mentioned in Regulation 31 of the 2018 Regulations has been defined in Regulation 2(1)(k) of the 2018 Regulations as being the 1st day of April, 2018 (01.04.2018).
12. It is not the petitioner's case that he has been visited with the compulsory retirement on or after the "effective date". Even, in terms of the 2018 Regulations, which are not applicable to the petitioner, the pension may arguably have been granted only if compulsory retirement by way of punishment was on or after the effective date. Facts are not so in the instant proceedings. The petitioner has been compulsorily retired much before the effective date, i.e., 01.04.2018. The 2018 Regulations are thus not applicable to the petitioner's claim. The petitioner's compulsory retirement is dated 19.10.2016."
2. Before concluding as hereinabove, this Court in case of Birendra Kumar (supra), has discussed various statutory Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 3/13 provision under the Regulation, in paragraph 10, as under : -
"10. This Court would consider it useful to reproduce Regulations 2(1)(k), 20 and 31 of the 2018 Regulations. The same read as follows :
"2(1)(k) "effective date" means the 1st day of April, 2018;
20. Forfeiture of Service.- (1) Resignation not amounting to voluntary retirement or dismissal or removal or termination of an employee from the service of the Bank shall entail for forfeiture of his entire past service and consequently shall not qualify for pension under these regulations.
(2) An interruption in the service of an employee entails forfeiture of his past service, except in the following cases, namely:-
(a) authorized leave of absence;
(b) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the employee dies or is permitted to retire or is retired under the provisions of the Service Regulations while under suspension.
"31.Compulsory retirement pension-
Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 4/13 An employee compulsorily retired from service as a penalty, on or after the effective date, in terms of the Service Regulations, may be granted by the authority higher than the authority competent to impose such penalty, pension at a rate not less than two-thirds and not more than full pension admissible to him on the date of his compulsory retirement, if otherwise he was entitled to such pension on superannuation, on that date: Provided that where the pension awarded under this regulation is less than the full pension admissible under these regulations, the Board of Directors shall be consulted before such order is passed."
(emphasis mine) The same appears to contemplate grant of pension at the rates specified therein to an employee compulsorily retired from service as a penalty, on or after the "effective date" (01.04.2018)."
3. In a subsequent decision rendered by another coordinate Bench of this Court in case of Shrinath Upadhyay vs. Union of India through its Secretary, Ministry of Finance & Ors., reported in 2021(1) PLJR 273, the decision rendered in Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 5/13 case of Birendra Kumar (supra) has been held to be per incuriam and, therefore, not a binding precedent. Paragraphs 47 to 49 of decision rendered in case of Shrinath Upadhyay (supra) reads as under : -
"47. Keeping in view the aforesaid judgments of the Hon'ble Supreme Court, this Court finds that in fact the issues which have been raised in the present application and the statutory provisions which have been referred to by learned counsel for the parties were not placed before the learned Coordinate of this Court in the case of Birendra Kumar (Supra). Even the judgments of the Hon'ble Apex Court were not brought before the learned Coordinate Bench. The argument of the petitioner in the present case is that he is entitled for pension in terms of Regulation 32(1), 13 and 14 of the Pension Regulation read with Regulation 3(C) but his application has been wrongly rejected by citing Regulation 20 and 31 of the Pension Regulations. In the case of Birendra Kumar (Supra) although a contention was raised on behalf of the petitioner that Regulation 20 would not be applicable, the order of compulsory retirement does not entail forfeiture of the Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 6/13 past service of the petitioner, the ratio of the judgment of Birendra Kumar (Supra) is not on that issue.
48. Here, in this case even the learned counsel representing the Union of India has categorically submitted that Regulation 20 is an issue to be considered and adjudicated and those employees who have been awarded the punishment of compulsory retirement on or after 01.04.2018 is not covered by Regulation 20 then on what basis it may be visualized or culled out that an employee who was made to retire prior to 01.04.2018 is covered by Regulation 20.
49. In the present case the statutory provision such as Regulation 32(1), 13 and 14, 3(C) and Regulation 2(x) of the Regulation of 2018 along with some other provisions have come up for consideration which were not there in the case of Birendra Kumar (Supra), therefore, this Court finds that the issues which have been raised in the present case are not having any binding precedents."
4. Tracing the history of framing of the Regulations, it has been held in case of Shrinath Upadhyay (supra) that sometimes judicial pronouncements leading to enactment or Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 7/13 framing of statutory rules comes in aid to interpreting the reasons of the Statute or Rules as the case may be. Paragraph 61 of the decision in case of Shrinath Upadhyay (supra) reads as under : -
"61. This Court has already discussed in detail the several provisions of the Pension Regulations 2018 and harmonious construction of all the provisions have been made. The background in which Pension Regulations 2018 came and the clear directions of the Hon'ble Karnataka High Court which was approved by the Hon'ble Supreme Court leaves no ambiguity in the minds of this Court that the pension scheme framed for the employees of the RRBs cannot be given any interpretation which may have a potential to draw a distinction in the matter of treatment as respect payment of pensionary benefits between the employee of the sponsor banks and the employee of the Regional Rural Banks. Sometimes the previous judicial pronouncements leading to enactment for framing of a statutory rules comes in aid in interpreting the provisions of the Statute or Rule as the case may be."
Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 8/13
5. In the present case, punishment of compulsory retirement was imposed upon the petitioner by an order dated 27.06.2014. He relies on the decision in case of Shrinath Upadhyay (supra), which has held the decision, in case of Birendra Kumar (supra), per incuriam and, therefore, not a binding precedent on the ground that various statutory provisions under the Regulations were not brought to the notice of the coordinate Bench in Birendra Kumar (supra).
6. I am in respectful disagreement with the approach of the coordinate Bench in case of Shrinath Upadhyay (supra), while declaring a coordinate Bench decision of this Court per incuriam and not a binding precedent. Upon analysis of the statutory provision under the Regulations, the coordinate Bench specifically held in case of Birendra Kumar (supra) that a person having compulsorily retired by way of punishment before the effective date of implementation of the Regulations would not be entitled to benefits under the Regulations. In my opinion, if a different view was to be taken by a Bench of the same strength, the judicial discipline required the matter being referred to a larger Bench. This view finds support from the decision rendered by the Supreme Court in case of State of Bihar vs. Kalika Kuer Alias Kalika Singh and Others, reported Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 9/13 in (2003) 5 SCC 448, wherein the Supreme Court has emphatically laid down that an earlier judgment may seem to be not correct, yet it will have the binding effect on the later Bench of coordinate jurisdiction. Easy course of showing that the earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways : -
(a) either to follow the earlier decision; or
(b) refer the matter to a larger Bench to examine the issue, in case it is felt that the earlier decision is not correct on merits.
7. In case of Kalika Kuer (supra), question of vires, interpretation and scope of various provisions of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Bihar Consolidation Act') had been earlier considered by a Full Bench consisting of three honorable Judges of this Court in Ramkrit Singh vs. State of Bihar (AIR 1979 Pat 250). In subsequent decision in case of Kalika Kuer alias Kalika Singh vs. The State of Bihar and Another, reported in 1989 PLJR 1203, another Full Bench of the same strength declared Sections 15(1) and 15(2) of Bihar Consolidation Act ultra vires Articles 13 and 14 of the Constitution of India though the vires of Section 15 of the Bihar Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 10/13 Consolidation Act had been upheld in case of Ramkrit Singh (supra) by the Full Bench. The Full Bench in case of Kalika Kuer vs. State of Bihar (supra) had further held that certain categories of disputes and the matters could have been considered and decided by the Civil Court despite the restrictions placed under Section 4(b) and 4(c) of the Bihar Consolidation Act and bar of jurisdiction of Civil Court under Section 37 of the Act, contrary to the view earlier taken by the Full Bench of the same strength in case of Ramkrit Singh (supra). Noticing the Supreme Court's decision in case of Fuerst Day Lawson Ltd. vs. Jindal Exports Ltd., reported in (2001) 6 SCC 356, the Supreme Court in case of Kalika Kuer (supra) held in paragraph 10 as under : -
"10. Looking at the matter, in view of what has been held to mean by per incuriam, we find that such element of rendering a decision in ignorance of any provision of the statute or the judicial authority of binding nature, is not the reason indicated by the Full Bench in the impugned judgment, while saying that the decision in the case of Ramkrit Singh [AIR 1979 Pat 250 : 1979 Pat LJR 161 (FB)] was rendered per incuriam. On the other hand, it was observed that in the case of Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 11/13 Ramkrit Singh [AIR 1979 Pat 250 : 1979 Pat LJR 161 (FB)] the Court did not consider the question as to whether the Consolidation Authorities are courts of limited jurisdiction or not. In connection with this observation, we would like to say that an earlier decision may seem to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the court or more aspects should have been gone into by the court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways -- either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits. Though hardly necessary, we may however, refer to a few decisions on the above proposition."
(underlined for emphasis) Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 12/13
8. As has been held by the Supreme Court in series of decisions, in my opinion, unless it is a glaring case of obtrusive omission, it was not desirable to depend upon the principle of judgment 'per incuriam'. In case of Vijay Laxmi Sadho (Dr) v. Jagdish, reported in (2001) 2 SCC 247, the Supreme Court held in paragraph 33 as under : -
"33. As the learned Single Judge was not in agreement with the view expressed in Devilal case [Devilal v. Kinkar Narmada Prasad, Election Petition No. 9 of 1980] it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress than the said course was not followed. It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of 'different arguments' or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less Patna High Court CWJC No.14317 of 2019(11) dt.31-08-2021 13/13 than legal propriety forms the basis of judicial procedure and it must be respected at all costs."
(Underlined for emphasis)
9. The decision in case of Vijay Laxmi Sadho (Dr) (supra) has been relied upon by the Supreme Court in case of Kalika Kuer (supra).
10. Considering the law laid down by the Supreme Court in case of Kalika Kuer (supra) and in case of Vijay Laxmi Sadho (Dr) (supra), there being two conflicting views taken by the two coordinate Benches of the same strength, the question as to whether an employee of Madhya Bihar Gramin Bank, compulsorily retired by way of punishment before Madhya Bihar Gramin Bank (Employees' Pension) Regulations, 2018 came into force, shall be entitled to benefits of pension under the said Regulations requires consideration by a Division Bench for an authoritative pronouncement.
11. Let the matter be placed before Hon'ble the Chief Justice for referring the question of law, as noted above, to a Division Bench.
(Chakradhari Sharan Singh, J) Pawan/-
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