IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Review No.73 of 2002 ---------- Against judgment and order dated 16.10.2001 passed in C.W.J.C.No.12369 of 2001. ---------- 1.Amar Kumar Mahto, son of Sri Jagannath Mahto, resident of village- Nagarnausa, P.S. Nagarnausa, District- Nalanda 2.Ameriesh Koeri, son of Sri Hari Prasad Koeri, resident of Harnaut, P.S. Harnaut, District- Nalanda. ………. Petitioners Versus 1.The State Of Bihar 2.The Union of India through the Director General, Employment and Training, Ministry of Labour, Government of India, Shramshakti Bhawan, Rafi Marg, New Delhi 3.Director, Employment and Training, Government of Bihar, Vikash Bhawan, Patna 4.Sri Sanjay Kumar, Examination Controller, Directorate of Employment and Training, Digha Ghat, Patna …….. Respondents ---------- For the Petitioners : Mr.D.K.Sinha, Sr.Adv. with Mr.Manoranjan Kumar Sinha No.1,Adv. For the State : Mr.Satya Prakash Tripathi, S.C.7 For Union of India : Mr.Sarv Deo Singh, Adv. ----------- P R E S E N T HON’BLE MR.JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J: This review application has been filed by the petitioner for review of order of learned single Judge passed on 16.10.2001 in C.W.J.C.No.12369 of 2001 by which, even in absence of learned counsel for the petitioner, writ application of the petitioner was dismissed on merits. Against the said order, petitioner had moved before a Division Bench of this Court in L.P.A.No.1424 of 2001. The said L.P.A. was disposed of by order dated 6.5.2002 finding that, in view of submission of the learned counsel for the appellant that some document could not be brought to - 2 - the notice of the learned Single Judge which had bearing on the merit of the case, appropriate course for appellant was to file review application before learned single Judge. Hence, this review application was filed and has been finally heard by this Court. 2. In support of the review application, assailing orders passed by learned single Judge in the writ application of the petitioner as aforesaid, learned senior counsel for the petitioner relied upon a decision of a Division Bench of this Court in the case of Kishori Prasad Vs. State of Bihar (reported in 2008(2) PLJR 458) and contended that when learned counsel for the petitioner was not present, the ordinary course open to learned single Judge was either to postpone the hearing of the case or dismiss it for want of prosecution. But in no circumstance the same could be decided on merits. Learned senior counsel for the petitioner has referred to paragraph 3 of the said decision of the Division Bench for the purpose, which is as follows : “3. We have also earlier made it clear and we again make it clear that where the learned counsel for the petitioner is not present, the ordinary course is either to postpone the hearing or to dismiss it for want of prosecution but in no circumstances it is to be decided on merit. The same view has also been taken by the Hon‟ble Supreme Court in number of matters.” 3. Learned senior counsel for the petitioner also relied upon a decision of the Hon‟ble Supreme Court in the case of Satin Chandra Pegu Vs. Stata of Assam (reported in 2007(1) PLJR (SC) 91) to point out - 3 - that in similar circumstances a Criminal Revision, which was dismissed after hearing learned counsel for the State, in absence of learned counsel for the petitioner, was remitted back by the Apex Court, for reconsideration, after setting aside the said order of dismissal. 4. Learned counsel for the respondents, in reply, referred to a later decision of a Division Bench of this Court in the case of Kedar Nath Tripathi Vs. The State of Bihar (reported in 2008(3) PLJR 470). Referring to this decision, he contended that the earlier decision of the Division Bench in the case of Kishori Prasad (Supra), relied upon by learned senior counsel for the petitioner, is no longer a good law. He submitted that the later Division Bench in the case of Kedar Nath Tripathi (Supra) considered the decision of the earlier Division Bench in the case of Kishori Prasad (Supra), and explained the same as not laying down correct proposition of law. He particularly relied upon observations of the said later Division Bench in paragraph 2 of the said decision which was made after considering paragraph 3 of the earlier Division Bench decision as quoted above. For easy reference, paragraph 2 of the said later Division Bench decision is reproduced herein : “2. In our view, the aforesaid observations cannot be said to laying down an absolute proposition that in absence of the party or his counsel, writ petition cannot be decided on merits. It could not have been because there is no such fetter imposed upon the Single Judge exercising high prerogative jurisdiction under Article 226 of the Constitution of India. It needs no - 4 - elaboration that the proceedings under Article 226 of the Constitution are not governed by the Code of Civil Procedure, 1908. Section 141 of the Code of Civil Procedure excludes the applicability of the provisions contained in the Civil Procedure Code to the proceedings under Article 226 of the Constitution. No judgment of the Supreme Court has been brought to our notice holding otherwise in so far as writ jurisdiction under Article 226 of the Constitution of India is concerned.” 5. In view of the above observations of the Division Bench, learned counsel for the respondents submitted that the decision of the earlier Division Bench is not a binding precedent as it does not lay down the law correctly. Therefore, the decision of the later Division Bench of this Court as relied upon by him has to govern the field and hence learned single Judge was well within his powers under Article 226 of the Constitution to dismiss the writ application on merits, in spite of absence of learned counsel for the petitioner, when the case was called out. He further submitted that in the case of Satin Chandra Pegu (Supra) the Apex Court had found the non-appearance of the learned counsel for the accused, on the ground of being subsequently appointed as counsel for State, as correct and justified and hence it set aside the order and remitted it back “In view of this peculiar circumstances” and “in the interest of justice”. 6. Learned counsel for the respondents also relied upon a decision of learned single Judge of this Court in the case of Md.Abdullah Vs. the State of Bihar (reported in 2002(1) PLJR 639) and submitted that where earlier decision of this court has been - 5 - considered in the later decision and the former decision has been explained, this Court is obliged to follow the later decision. 7. Learned senior counsel for the petitioner, in reply, relied upon a decision of a learned single Judge of this Court in the case of Balram Singh Yadav Vs. The State of Bihar (reported in 2005(3) PLJR 582) contending that wherever a subsequent Division Bench has not taken note of an earlier Division Bench, decision of the subsequent Division Bench is rendered per incurium and does not constitute a binding precedent. He also referred to a decision of the Hon‟ble Supreme Court rendered in the case of Union of India Vs. Godfrey Philips India Ltd. (reported in AIR 1986 SC 806) and contended that in case of disagreement the only course open to the subsequent Division Bench, as relied upon by learned counsel for the respondents, was to refer the matter to a larger Bench and it was not open to the subsequent Division Bench to explain or distinguish earlier Division Bench and come to a definite finding on the basis of its opinion or interpretation of law. He submitted that in fact later Division Bench in the case of Kedar Nath Tiwari (Supra) was rendered per incurium and not the earlier Division Bench in the case of Kishori Prasad (supra) relied upon by him. 8. The doctrines of binding precedent and per incurium are deeply embedded in the judicial system and have been discussed and explained in long series of judicial pronouncements of English Courts as well - 6 - as Hon‟ble Supreme Court and different High Courts of this country. Instead of referring to the individual judgments and pronouncements of the Hon‟ble Supreme Court and different High Courts it would be appropriate that the principles evolved in the light of the said decisions are noticed and summarized at one place. 9. Doctrines of „decision per incuriam‟ and „decision sub silentio‟ are exceptions to the fundamental rules of administration of justice, which require certainty in law and consistency in judicial decisions for the system to work efficiently and in the interest of the society. Hence, doctrine of „binding precedent‟ was evolved by the English Courts, laying down that judicial propriety and decorum demand the same to be followed by the judges as a rule, to ensure uniformity in law and judicial decisions, unless certain exceptional circumstances are held to exist. Thus, judicial discipline requires a co- ordinate Bench to follow the judgment of an earlier co-ordinate Bench rendered on the issues of law for general application. That is why, in absence of a law laid down or interpreted by the Apex Court under Article 141 for universal application, the law laid down by one High Court on the same issue also has a persuasive value for other courts in the country. This indispensable foundation for dispensation of justice has been evolved to provide at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for - 7 - orderly development of legal rules and to avoid, to the maximum, uncertainty and confusion in the application of law in the process of healthy development of social fabric. 10. But it is not that the whole judgment and all observations and findings therein are to be taken as binding precedent by a subsequent co-ordinate Bench. It is only the „ratio decidendi‟ of the judgment which constitutes a binding precedent. This principle of judicial conduct has been very succinctly expressed in Para 1237, Vol.-37 of Halsbury‟s Laws of England (Fourth Edition) in the following terms:- “The enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision.” (emphasis supplied) 11. Then again „obiter dicta‟ of a judge has also no precedential value. It is only a considered enunciation of law by the judge on points arising or raised in the case directly which has a precedential value, and not the unnecessary statements or opinion, out of context, made beyond the occasion, unnecessary for the purpose at hand or made by way of passing remark. (See para 1238 of Halsbury‟s Laws of England- Fourth Edition). 12. Hence, judgment rendered in a fact situation applying the law holding the field at that - 8 - point of time, or an obiter dictum therein, has no precedential value; it is only enunciation of law in rem, on issues directly raised or arising, de-hors of the application of law to the facts of the case, a `ratio decidendi‟ which alone is treated as binding precedent. This principle has been further explained in the same paragraph (supra) thus:- “What constitutes binding precedent is the ratio decidendi and this is almost always to be ascertained by an analysis of the material facts of the case, for a judicial decision is often reached by a process of reasoning involving a major premise consisting of a pre-existing rule of law, either statutory or judge- made, and a minor premise consisting of material facts of the case under immediate consideration.” 13. Decisions rendered „per incuriam‟ also fall outside the category of binding precedent. Hence decision, contrary to the provisions of the Act or patently erroneous are not to be treated as binding precedent. „Incuria‟ literally means „carelessness‟ and „per incuriam‟ are those decisions rendered in ignorance of some clear statutory provision or in ignorance of some law laid down by the Apex Court or a clear decision of a co-ordinate or larger Bench of the same Court on the question of law of universal application. The Apex Court, in the case of Fuerst Day Lawson Ltd Vs. Jindal Exports Ltd ((2001)6 SCC 356) has quoted with approval para 7 of the judgment of the court in the case of Mamleshwar Prasad Vs. Kanhaiya Lal ((1975)2 SCC 232), portion of which is usefully re-produced here below:- “We do not intend to detract from the rule that, in exceptional instances, - 9 - where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission.” 14. Similarly, decisions rendered „sub silentio‟ are also not binding precedents. Referring to three Apex Court judgments, in Halsbury‟s Law of India, vol. 10, in paragraph 100.013, it has been clarified as follows:- “Similarly, decisions sub silentio have no precedent value. This means that any declaration or conclusion arrived at without application of the mind or precedent and without any reason cannot be deemed to be a precedent.” 15. But merely a different opinion or a possible different interpretation of law cannot be a ground to hold an earlier decision of a co-ordinate bench as rendered „per incuriam‟ or „sub silentio‟ or not a binding precedent. Considering the circumstances, in reference to judgments of the Apex Court, not sufficient to hold a decision rendered „per incuriam‟ it has been explained in Halsbury‟s Law of India, vol. 10, paragraph 100.015, thus:- “(3) Not even new discovery or argumentative novelty can undo or compel reconsideration or a binding precedent; the precedent does not lose its authority merely because it was badly argued, inadequately considered and fallaciously resolved.” 16. These circumstances may only persuade the co-ordinate bench to refer the matter to a larger bench which may give an authoritative pronouncement and overrule the erroneous decision of the smaller - 10 - bench. 17. Thus, it is only a decision, rendered contrary to law, statutory or judge-made, or a binding precedent, or an obligatory authority, and patently erroneous, is „per incuriam‟. 18. But decisions „per incuriam‟ and „sub- silentio‟ are also, at times saved by application of doctrine of „Stare decisis‟. Thus a judgment holding the field for long, and acted upon and applied widely, are allowed to remain operative and not disturbed, even if renderd „per incuriam‟ or „sub-silentio‟, for it may upset a long line of transactions having achieved finality on its basis and may create chaos in the society. In Halsbury‟s Law of India, vol. 10, in paragraph 100.015, the principle behind this doctrine of „Stare decisis‟ has been explained thus: “A decision of long standing on the basis of which many have arranged their affairs in the course of time should not lightly be disturbed by a superior court even if it is not strictly bound by the decision. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of this decision.” 19. But such decision can also be overruled, if it is manifestly wrong and unfair, by application of doctrine of „prospective overruling‟, as evolved by American Courts and applied frequently by Courts in India, to protect the transactions achieved finality on the basis of such wrong decision on the one hand and to set the wrong in the field of law right on the - 11 - other. 20. But these doctrines do not fetter the powers of the Apex Court to do complete justice in exercise of its power under Article 142 and it „may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it‟, which is of paramount importance in a judicial system, made clear in a few words by Lord Atkin when he said, „Finality is a good thing, but justice is better.‟ 21. Now, in the backdrop of the above analysis of different principles and doctrines as emerging from judicial pronouncements, if the two Division Bench decisions of this Court relied upon by the respective parties are considered, it is apparent that the later Division Bench in the case of Kedar Nath (Supra) as relied upon by the respondents has explained the earlier Division Bench decision not on the ground of its different opinion or possible different interpretation in respect of any statutory provision or law laid down by a judicial authority. It is clear that the later Division Bench had found that earlier Division Bench had not taken into account specific provision of law operating in the field and had not considered the scope of jurisdiction of the High Court under Article 226 of the Constitution of India which is a high prerogative writ jurisdiction not governed by the rules or procedure laid down in the Code of Civil Procedure. Hence, in the opinion of this Court, later Division Bench rightly held, in - 12 - effect, decision of the earlier Division Bench as rendered per incurium. Since the later Division Bench found that the earlier decision of the Division Bench was rendered in ignorance of specific provision of law and the Constitutional scheme governing the jurisdiction under Article 226 of the Constitution of India, it was not obligatory on its part to refer the matter to a larger Bench. 22. In the circumstances, this Court does not find any merit in the above submission of learned senior counsel for the petitioner. 23. Learned senior counsel for the petitioner, then also submitted that, in view of Chapter XXI-C, particularly, Rule A, read with Chapter VIII Rule 23 of the Patna High Court Rules, the later Division Bench has wrongly held that the provisions of Code of Civil Procedure were not applicable to a proceeding under Article 226 of the Constitution of India. He referred to the said provisions of the Patna High Court Rules to show that in express terms several provisions of the Code of Civil Procedure have been made applicable by the Rules in the matter of a proceeding under Article 226 of the Constitution of India. He particularly pointed out the reference to Order IX Rule 9 and Order IX Rule 13 made in Chapter VIII of the Patna High Court Rules to contend that by analogy the provisions of Order IX Rule 8 also becomes applicable in a proceeding under Article 226 of the Constitution of India. Hence, writ application in absence of learned counsel for the petitioner cannot - 13 - be dismissed on merits. 24. This argument of learned senior counsel for the petitioner is fallacious. Particular reference to particular provisions of the Code of Civil Procedure in Patna High Court Rules clearly rules out applicability of any other provisions of the Code of Civil Procedure in a proceeding under Article 226 of the Constitution of India. By analogy specific reference of the provisions negates the applicability of rest of the provisions of the Code of Civil Procedure not specifically mentioned in the Rules. Therefore, the submission of learned senior counsel for the petitioner that by reference to Order IX Rules 9 and 13 of the Code of Civil Procedure, the provisions of Order IX Rule 8 of the Code of Civil Procedure automatically becomes applicable by analogy has no merit and is rejected. 25. Order of the Division Bench in the L.P.A. of the petitioner, shows that it was argued on their behalf that as learned counsel for the appellants could not appear before the learned Single Judge, „they could not bring notice to his Lordships certain documents showing increase of in-take in the institution.‟ In view of such submission of learned counsel for the appellant (petitioner) before the Division Bench, petitioner was allowed to file review of the order and the L.P.A. was disposed of. 26. However, to consider the review on merits, when this Court requested learned senior counsel for the petitioner to point out any document - 14 - which had escaped notice of learned single Judge while dismissing the writ application on merits in absence of learned counsel for the petitioner or to point out any apparent error of record or in law having occurred therein, he was unable to do so. In spite of repeated queries by this Court, learned senior counsel for the petitioner utterly failed to point out any cogent reasons for review of the order of learned single Judge passed in the writ matter of the petitioner on facts or within the parameters of limits of the review jurisdiction. 27. In the circumstances, this Court finds that there is no merit in this review application. The same is accordingly dismissed. Patna High Court The 27th October, 2009 A.F.R./ Pradeep (Jayanandan Singh, J.)