LALMUANA AND ORS. Vs. THE STATE OF ASSAM AND ORS.
HIGH COURT OF GAUHATI
Lalmuana And Ors.
The State Of Assam And Ors.
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Goswami, C.J. -
(1.) IN these CM Rules, identical orders of dismissal of the Petitioners have been challenged under Article 226 of the Constitution of India. The Petitioners, who are civil servants, were dismissed, admittedly dispensing with the enquiry under Article 311(2) of the Constitution by invoking the proviso (c) thereof.
(2.) THE controversy turns on the material recital in the order, of the Governor which runs thus:
The Governor of Assam is further satisfied under Sub -clause (c) of the proviso to Clause (2) of Article 311 of the Constitution that in the interest of the security of the State it is not expedient to give them an opportunity to show cause against the action proposed to be taken in regard to them as stated above.
It is submitted by the Petitioners that the satisfaction of the Governor as required under the law is absent in the above order. The learned counsel relies upon a decision of the Division Bench of this Court reported in, ALR (1969) Gau 192 : : AIR 1970 Gau 80 (Zatia v. State of Assam) support of his contention. There is however, an earlier unreported decision division Bench of this Court disposed of on 26 -7 -1967 in Civil Rule Nos. 192 and 208 of 1960 (Assam) (Bhagaban Chandra Das v. State of Assam) where a contrary view had been taken dealing exhaustively with the relevant decisions of the Supreme Court touching on the point. We understand that this decision is now pending before the Supreme Court on a certificate issued by this Court. Although Mr. Mazumdar, the learned Counsel for the State, stated at the Bar that the above earlier decision of the Division Bench was referred to at the time of hearing, it does not appear to have been noticed or discussed in the later judgment. Although this will make the later judgment a judgment per incuriam yet in view of the fact that there are two decisions of the Division Bench side by side and the earlier one is pending decision of the Supreme Court, we would direct that these cases shall be placed for hearing before us after disposal of the appeal in the Supreme Court. In taking this course, we have followed the observation of the Supreme Court in : AIR 1962 SC 83 (Jaisri v. Rajdewan):
When a Bench of the High Court gives a decision on a question of law, it should, in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.
Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is, therefore, desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. When two such conflicting decisions are placed before a later Bench, the correct procedure to follow in such a case would be for the Bench hearing the case to refer the matter to Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other.
We are following this course even though, the English practice is as noted in Halsbury's Laws of England, third edition, Vol. 22, para 1687, pages 799 -800:
The Court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a coordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords." We should also refer in this context to a succinct observation of the Full Bench of the Madras High Court in, AIR 1940 Mad 353 at page 362 (Seshamma v. Venkata Narasimharao):
The Division Bench is the final Court of anneal in an Indian Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law. In England, where there is the Court of Appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of judicial comity xx xx xx If this course is not adopted, the courts subordinate to the High Court are left without guidance. Apart from the impropriety of an appellate Bench refusing to regard itself bound by a previous decision on a question of law of an appellate Bench of equal strength and the difficulty placed in the way of subordinate Courts administering justice, there are the additional factors of the loss of money and the waste of judicial time.
We will, therefore, order that the above Rules shall be placed before the Bench for hearing after the disposal of the appeal by the Supreme Court against the decision in Civil Rule Nos. 192 and 208 of 1966 (Assam).
M.C. Pathak, J.
(3.) I agree.;
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