Posted On by &filed under High Court, Karnataka High Court.


Karnataka High Court
Muniswamy Gowda H. vs Management Of Ksrtc And Another on 10 January, 1997
Equivalent citations: ILR 1997 KAR 509
Author: R Sethi
Bench: R Sethi, S Venkataraman


JUDGMENT

R.P. Sethi, C.J.

1. The applicants who are employees of the respondent-Corporation filed Writ Petitions challenging the initiation of disciplinary proceedings against them under the provisions of Karnataka State Road Transport Corporation Servants (Conduct & Discipline) Regulations, 1971 (hereinafter referred to as the Regulations) mainly on the ground that the said Regulations were non existent, void being inconsistent with the provisions of Section 13B of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter called as the ‘1946 Act’). It was submitted that the Regulations allegedly framed under Section 45(2)(c) of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950) (hereinafter called the Act) were neither reasonable nor fair. The appellants prayed for issuance of directions prohibiting the respondents, their agents, servants and others acting on their behalf from taking any action against them under the regulation or in pursuance of the endorsement issued to them. In support of their submissions the appellants relied upon the judgment of the Full Bench of this Court in case of the Pandavapura Sakkare Kharkane Ltd v. The Industrial Tribunal, Bangalore . It was submitted that as the Full Bench had specifically over-ruled the earlier Division Bench Judgment of this Court, in K. V. R. Shetty v. Secretary to Government, Home Department, Karnataka & Others (1980-LLJ-265), the Regulations being non existent, could not be made the basis for initiating the disciplinary action against them. The submissions did not find favour with the Learned Single Judge who dismissed the Writ Petitions of the appellants vide order impugned in these appeals.

2. It may be noticed that the respondent-Corporation was created under the Provisions of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950) and prior to its formation, the Nationalised Transport Services in the former State of Mysore were directly run by the Department of the State Government, known as the Mysore Government Road Transport Department (M.G.R.T.D.). At that time, for the residents of City of Bangalore, buses were operated by Company known as Bangalore Transport Company. After the nationalisation of the Company on October 1, 1956, its management was placed under a separate unit of M.G.R.T.D. which was known as Bangalore Transport Service’ Similarly, some areas now forming part of State of Karnataka which were earlier the parts of Madras, Bombay and Hyderabad had their own transport services. The M.G.R.T.D. had a set of Certified Standing Orders under the 1946 Act. The B.T.S. also had its separate Standing Orders. On reorganisation of the States, the units of the National Transport Services in the interest asreas also came under the control of grating a M.G.R.T.D. In 1961 the entire transport business was taken over by the Corporation constituted under Sec. 3 of the Road Transport Corporation Act, 1950 (Central Act of 1950). The Corporation consisted of various Divisions. In exercise of the powers conferred under Section 34(1) of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950) the State Government issued the directions to the Corporation on August 1, 1961 in relation to recruitment conditions of service and wages to be paid to the employees of the M.G.R.T.D. who had opted to serve under the Corporation. The Corporation thereafter passed a resolution resolving that all Rules, Regulations, procedures, precedents and conventions enforced on July 31, 1961 in the Mysore Government Road Transport Department be continued by the Corporation until further orders. In view of the aforesaid resolution the Standing Orders and other precedents earlier prevalent held the field till the regulations were issued under a notification of the State Government dated March 15, 1972 which were published in the Mysore Gazette dated March 8, 1972. Part-III of the Regulations was challenged in K. V. R. Shetty’s Case on the grounds :

“(1) that the Standing Orders which were applicable to the employees of the Corporation prior to the coming into force of the Regulations, were certified Standing Orders and in the light of the pronouncement of the Supreme Court that the Standing Orders Act is a special Act, the Regulations which had been made under the Act which is a general Act, must yield to the Standing Orders framed under the Standing Orders Act;

(2) that in view of the fact that the Standing Orders Act and the certified Standing Orders framed thereunder are applicable to the disciplinary action against the employees of the Corporation, the impugned Regulations could not be made rest matters of covered by the Standing Orders and that since Section 45 of the Act generally provides for the of Regulations providing for the conditions or service of the employees of the Corporation, these general provisions must yield to the special provisions of the Standing Orders Act and, therefore, Standing Order No. XIII should prevail over the provisions of Part III of the Regulations framed under Section 45 of the Act, and

(3) that Regulation No. 39 which repels the M.G.R.T.D. Standing Orders etc., in so far as they relate to conduct and disciplinary proceedings and imposition of penalties provided for in the impugned Regulations, is ultra vires of the provisions of the Act.”

3. In its objections the Corporation while resisting submitted that the Standing Orders which were applicable to the erstwhile BTS and M.G.R.T.D. under the Standing Orders Act, stood repealed by the Regulations which came into force on June 19, 1974. A Division Bench of this Court examined the rival pleas of the parties and held that the impugned Regulations were valid which had superseded the certified Standing Orders of the Corporation. The correctness of the Division bench judgment in K. Y. R. Shetty’s case was doubted by a Division Bench of this Court in Pandavapura Sahakara Sakhare Kharkane Ltd. v. The Presiding Officer, Ational I. T. Bangalore case (supra) who vide their order dated October 24, 1990 held :

“Therefore it appears to us that as the judgment in K. V. R. Shetty’s case (supra) rederation in the light of the quires reconsi submission made by the Learned Counsel for the respondents relying on the specific portions of the judgment of the Supreme Court in UPSE Board v. Hari Sar (1978-II-LLJ-399). We consider it obligatory to refer the following question of law to the opinion of the Full Bench :

“Whether the fact that the State Government has framed rules regulating the conditions of service of officers and employees of co-operative societies established and functioning under the Karnataka Co-operative Societies Act, under Section 129(2)(o) of the Act, in which there is a rule prescribing the age of superannuation of officers and employees of a Co-operative Society and the rules have been Published in the official sufficient to make the Industrial Employment (Standing Orders) Act inapplicable to the petitioner establishment by the force of Section 13B of the said Act, even in the absence of publication of such rules by a special notification issued by the Government and published in the official gazette under Section 13B of the Industrial Employment (Standing Orders) Act ?”

As desired by the Division Bench the matter was placed before the Full Bench who vide their judgment over-ruled the judgment in K. V. R. Shetty’s case.

The learned Single Judge formulated the following question for his consideration :

“Whether the employees of the Respondent-Corporation are governed by the provisions of the Conduct and Discipline Regulations, by a valid exclusion of the Industrial Employment (Standing Orders) Act, 1946.”

and after analysing various aspects of the matter with reference to several pronouncements of the Apex Court and examining the record of the respondents, concluded :

“In the totality of the above circumstances, therefore I have no hesitation in holding that the Notification of the Regulations in question, was in pursuance of and meant to serve the purpose underlying Section 13B of the Act. The fact that the notification did not specifically refer to Section 13B, does not in my opinion make any difference. For it can very clearly be seen that the intention of the Government was to make the provisions of the Act inapplicable to the employees of the Corporation. It is thus one of those cases where the intention to exclude is explicit as observed by the Full Bench if not from the contents of the Notification at least from the relevant official records of the Government and referred to above.”

4. There appears to be force in the argument of the Learned Counsel appearing for the appellants that in view of the Full Bench judgment, the learned Single Judge should not have made the adventure of analysing the case afresh and come to different conclusions after analsying the contemporary record of the respondent State. It is submitted that the Full Bench in case of Pandavapur Sahakara Sakkare Kharkane Ltd. v. The Presiding Officer, Additional I. T., Bangalore (supra) has specifically overruled the Division Bench judgment in K. V. R. Sheny’s case holding that the basis of the Division Bench judgment was contrary to law and that the Industrial Employment (Standing Orders) Act, 1946 (Central Act No. 20 of 1946) being a special Legislation governing service conditions of establishments coming under the industrial laws in respect of matters enumerated in the schedule, required a specific notification in terms of Section 13B in case of change of service conditions. It is submitted that in K. V. R. Shetty’s case (supra) the Division Bench had wrongly held that no specific notification in terms of Section 13B of the Act of 1946 was necessary. After analysing the various judgments, the Full Bench in Pandavapura Sahakara Kharkane’s case (supra) has specifically held :-

“(1) The Act is a Special Legislation dealing with the subject of conditions of service enumerated in the schedule to the Act, of workmen in industrial establishments;

(2) Being a Special Act, its provisions override other law, on the subject, covered by its even if the industrial establishment in question is constituted or governed by such other law;

(3) To exclude the operation of the Act to any extent, in respect of matters covered by some other rule or regulations, a specific notification under Section 13B of the Act has to be issued and the appropriate government should have applied its mind to the question of excluding the provisions of the Act to the particular industrial establishment;

(4) A publication of a rule or a regulation in the gazette for a purpose other Section 13B of the Act by itself, cannot be treated as a Notification for the purpose of Section 13B also.

These principles flowing out of the decision of Supreme Court were not properly appreciated by the Court while deciding K. V. R. Shetty’s. case. (supra)”

The Full Bench concluded :

“We are of the view that the decision in K. V. R. Shetry’s case does not reflect the correct law as laid down by the Supreme Court in U.P.S.E. Board’s case (Supra) and accordingly, we over-rule the decision in K. V. R. Shetty’s case (supra). Since Rule 18 of the Co-operative Societies Rules was not specifically notified with reference to Section 13B of the Standing Orders Act, said rules would not exclude the operation of the Standing Orders Act, in respect of the matters covered by the said Rule 18. Therefore, we answer the question referred to us in the negative.”

The hierarchical system of Courts prevalent in our Country mandates upon for each lower tier including the High Court to accept loyally the decisions of the higher tiers. In Assistant Collector, C.E., Chandan Nagar, West Bengal v. Dunlop India Ltd., and others, AIR 1958 SC 330 the Apex Court dealt with the matter and referring to Cassel and Company v. Broome, 1972 AC 1027 their Lordships observed :

“We desire to add and as was said in Cassel and Company Ltd. v. Broome, (supra) 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, once spoken, is loyally accepted.” 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 v. Broome commenting on the Court of Appeal’s Comment that Rookes v. Bernard, 1964 AC 1129 was rendered per incuriam, Lord Diplock observed :

“The Court of Appeal found themselves able to disregard the decision of this House in Rookes v. Bernard 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.”

It is needless to add that in India under Article 141 of the Constitution the law declared by the Supreme Court shall be binding on all Courts within the territory of India and under Article 144 all authorities, Civil and Judicial in the territory of India shall act in aid of the Supreme Court.”

In Jai Kaur and others v. Sher Singh and others, the Court held that :

“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. AIR 1949 EP 328, Disapproved.” “When an Hon’ble Judge or a Bench has an occasion or reason to differ from the decision of a Bench of equal jurisdiction or a larger Bench the matter is required to be referred to a large Bench for final decision. The concept of judicial decorum and legal propriety require that the decisions of the larger Benches must be accepted by judges of that 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 larger Bench the proper course in that event as pointed out earlier, is to refer the matter to larger Bench.”

In the instant case the learned Single Judge appears to be conscious of the settled position of law as is evident from the observations made in the impugned order stating :

“the Full Bench judgment reversing the opinion expressed by the Division Bench on the said point is indeed binding upon me. Even Mr. Achar, learned Counsel appearing for the respondents, did not canvass that the Full Bench judgment did not settle the legal position correctly, assuming that any such argument could be advanced by the respondents even in an attempt to have the matter referred to larger Bench.” He further rejected the submission made on behalf of the appellants and held that the reversal of the judgment delivered in K. V. R. Shetty’s case (supra) would not prevent him from examining the issue once again in the context of aspects other than those dealt with in the Full Bench judgment. It was further stated, “in my opinion, all other aspects except these those that have been specifically dealt with in the Division Bench and full Bench, judgments remain open and can be examined in the present proceedings with a view to finding out whether the provisions of the Act are excluded in their application to the employees of the Corporation.”

5. In view of the law laid-down by the Supreme Court as noted herein above the approach adopted by the Learned Single Judge Cannot be justified. Once the Full Bench had held that publication of notification under Section 13B of the 1946 Act was mandatory, it cannot by any stretch of imagination be held that the law laid down in the K. V. R. Shetty’s case (supra) was still valid only because in the two cases the Benches were dealing with the different services and their rules. The judgment in Shetty’s case rested upon the foundation that no separate notification was required in terms of Section 13B of the Act and the publication of the Regulations issued under Sections 14 and 45 of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950) was sufficient. Such a foundation stood demolished vide the judgment of the Full Bench. How a structure raised in Shetty’s case can be permitted to stand in the absence of the foundation is a point penalty not acceptable and perhaps not validly considered by the Learned Single Judge. After referring to the is of Section 13B of the 1946 Act, the Full Bench has held :

“In K. V. R. Shetty’s case the Bench was concerned with the Regulation made under the provisions of Road Transport Corporation Act. Regulation was made by the corporation under See. 45 of the above said Act the State Government accorded sanction to regulation; the order of the Government according sanction was published in the Gazette. The employees contended that this publication of the order according sanction was different from the notification to be made under Section 13B of the Act and according to them, there ought to have been two distinct notifications, one under the Act and another under the State Corporation Act according sanction to the Regulations. Since no such Notification under Section 13B was issued, the provisions of the Act continued to operate and if so, the newly made Regulation would be invalid. The Bench did not accept this contention and observed at page 437 :

“There is no reason why there should be two separate notifications one under Section 45 of the Act and another under Section 13B of the Standing Orders Act, and why only one notification cannot perform both the functions, firstly according previous sanction of the Government under Section 45 of the Act for the Regulations framed by the Corporations and secondly notifying those Regulations for the purpose of Section 13B of the Standing Orders Act.”

6. Normally statutory rules and regulations require publication in gazette for their enforcement; this is a procedural requirement. Just because such a notification is issued with the publication of the Rules in the Gazette, can it be said that it is also a notification under Section 13B of the Act ?

The Act provides for certification of the Standing Orders governing various conditions of services in a particular establishment. Certification is done after hearing the employer and the employees; further, the Certifying Officer has to be satisfied that the Standing Order is fair and reasonable. Necessarily, the test of fairness and reasonableness would be with reference to the circumstances of the particular establishment including the nature of the industry and the working conditions prevalent in such an industry.

7. The Bench in K. V. R. Shetty’s case purported to rely on the decision of the Supreme Court in U. P. State Electricity Board v. Hari Shankar (supra) for its conclusion. With utmost respect we find that the Bench in the said case missed a few relevant observations as to the scope of Section 13B of the Act. At page 73 the Supreme Court observed

“Shri Garg relied on certain observations of the Madras High Court in Raman Nambissan v. State Electricity Board 1967 (14) FLR 316 and Thiruvenkata steamy v. Comibatore Municpality (1968-I-LLJ-361). In Raman Nambissan’s case it was held that mere fact that the Electricity Board had adopted the rules and regulations of the Government of Madras as its transitory rules and regulations did not bring the workmen employed in industrial establishments under the Board within the mischief of Section 13B of the Industrial Employment (Standing Orders) Act. In Thiruvenkata swamy’s Case, it was held that rules made by the Government under the District Municipalities Act could not be considered to be rules notified under Section 13B of the Standing Orders Act merely because the rules were by the Government and published in the Government Gazette. We agree with the conclusions in both cases. In Thrivenkataswami’s case Kailasam. J. also observed that the Industrial Employment (Standing Orders) Act was a special Act relating exclusively to the service conditions of persons employed in industrial establishment, and therefore, its provisions prevailed over the provisions of the District Municipalities Act. We entirely agree.

“From the above, it is clear that merely because the rules were made by the Government and published in the Gazettee, it cannot be considered as a notification under Section 13B of the Act. If the intention is to notify the rule or regulations under Section 13B, said intention has to be expressed properly.”

After referring to various observations made by the Supreme Court in U. P. Sate Electricity Board v. Hari Shankar, the Full Bench held :

“From the above decision following principles emerge :

(1) The Act is a Special Legislation dealing with the Subject of conditions of service enumerated in the schedule to the Act of workmen in industrial establishments;

(2) Being a Special Act, its provisions over-ride other law on the subject, covered by it, even if the industrial establishment in question is constituted or governed by such other law. (3) To exclude the operation of the Act to any extent, in respect of matters covered by some other rule or regulation, a specific notification under Section 13B of the Act has to be issued and the appropriate Government should have applied its mind to the question of excluding the provisions of the Act to the particular industrial establishment (4) A publication of a rule or a regulation in the gazette for a purpose other than Section 13B of the Act by itself, cannot be treated as a Notification for the purposes of Section 13B also. These principles flowing out of the decision of Supreme Court were not properly appreciated by the Court while deciding K. V. R. Shetty’s case.

The Act envisages finalisation of a Standing Order only after hearing the affected parties like the employer and employee, and only after the Certifying Officer is satisfied that it is fair and reasonable. There is also a provision for appeal to a higher authority against the order of the Certifying Officer. A built in machinery under the Act looks after the requirement of regulating the conditions of service of the workmen in the establishment covered by the Act.”

8. It was, therefore, concluded by the Full Bench that the decision in KVR Shetty’s case does not reflect the correct law as laid down by the Supreme Court in U.P. State Electricity Board’s case (supra) and the same was specifically overruled. No doubt was left by the Full Bench with respect to the applicability of the provision of Section 13B and a specific notification in terms thereof. It was further made clear that publication of annexure to G.O. No. UD 109 TRE 71, dated March 15, 1972 was not the sufficient compliance of the mandatory provisions of the 1946 Act.

9. In order to justify his conclusion the Learned Single Judge examined the files of the respondent-State and after reference to various communications concluded that in totality of circumstances, the notification of the Regulation in question was in pursuance and meant to serve the purpose underlying Section 13B of 1946 Act. The Learned (sic) his peeping into the files of the respondent-State for the purposes of ascertaining the settled position as to whether the regulations had been notified in terms of Section 13B of the Act or not.

The settled position of law is that if a particular statute requires a particular thing to be done in certain manner, the same must be done in that manner or not at all. All other modes of compliance are excluded. In this regard reference may be made to Narbada Prasad v. Chhaganlal and 31 others and P. Bhooma Reddy v. State of Mysore and others, .

Reference to the files and contemporary record may be made under specified circumstances if there is any ambiguity in the rule or notification but cannot be resorted to in the absence of such ambiguity. Where the words are clear and the intentions apparent, adopting a course of reference to such files and contemporary record may not be called for. In the instant case Order No. HD. 109 TRE 71, dated March 15, 1972, Bangalore, was published in the Government Gazette along with the regulations as, annexure. A perusal of the order leaves no doubt or ambiguity that the said order was passed in exercise of powers under Section 45 of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950). For the purposes of convenience the order is reproduced hereunder :

“Order No. HD 109 TRE 71, Dated Bangalore, March 15, 1972

G.S.R. 153 The Corporation Board of the Karnataka State Road Transport Corporation have in their resolution No. 1896 dated July 27 and 28, 1971, approved the “Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulation 1971” and have recommended them to Government for approval. The General Manager, Karnataka State Road Transport Corporation in his letter dated January 17, 1972 referred to above has requested approval of Government for the said regulations.

2. Under Section 45 of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950), sanction is hereby accorded to the “Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971” made by the Corporation.

3. A copy of the Regulations sanctioned by Government is enclosed to this order.”

10. Similarly, the annexure to the aforesaid G.O. containing the Regulations unambiguously shows that the aforesaid regulations were issued under the Central Act 64 of 1950. It is specifically mentioned therein :

“In exercise of the powers conferred by Sections 14 and 45 of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950) and with the previous sanction of the State Government, the Karnataka State Road Transport Corporation hereby makes the following regulations, namely – ………..”

It may not be out of place to mention here that the judgment in K. V. R. Shetty’s case (supra) had been rendered on the basis of the record produced by the respondents and that the Full Bench had overruled the K. V. R. Shetty’s case despite being aware of the fact that the judgment was based upon the record produced. The Learned Single Judge therefore appears to have unnecessarily made the venture to uphold the impugned regulations which was not warranted.

11. After analysing various aspects and taking note of the admitted facts and in view of the settled position of law it may not be held that the law laid-down in Shetty’s case was effective or binding upon the appellants, despite the judgment of the Full Bench. The judgment of the Learned Single Judge in so far as it holds that the notification of the Regulations was in pursuance and meant to serve the purpose underlying Section 13B of 1946 Act cannot be sustained and is liable to be set aside.

Despite hearing lengthy and elaborate arguments no ground is made out even for reference of the case to a larger Bench as no infirmity can be found in the judgment of the Full Bench which is based upon the correct exposition of the law in the light of the judgments of the Apex Court. The correctness of the judgment in K. V. R. Shetty’s case doubted by Division Bench in Pandavapura Sahakara Sakkare Kharkhane Ltd. v. The Presiding Officer, Additional I. T., Bangalore case (supra) and it referred the matter to the larger Bench and the Full Bench upon consideration of all aspects of the matter rightly came to the conclusion that the foundation upon which Shetty’s case rested was weak and without basis, with the result that the said judgment was over-ruled.

12. Mr. Acharya, the Learned Senior Advocate, appearing for the respondents has alternatively submitted that even if the judgment of the Learned Single Judge and of the Division Bench in K. V. R. Shetty’s case (supra) is held to be not sustainable, the writ petitions filed by the appellants may be dismissed in the interests of justice and public policy. Elaborating his argument, the Learned Counsel submitted that acceptance of the appeals would amount to opening the flood-gates of litigation which stood settled in view of the judgment in K. V. R. Shetty’s case, wherein the regulations were held to have been legally promulgated and enforced. It is contended that the policy of the Court is to stand by precedents and not to disturb settled points. The Courts are required to adhere to the principles of law as authoritatively laid down and made applicable in facts and circumstances of a particular case. The lengthy arguments addressed in this behalf revolved around the doctrine of STARE DECISIS. The said doctrine has its foundation in the public policy and is resorted to in exceptional circumstances for cogent reasons specifically dealt with and taken note of.

13. The expression STARE DECISIS is a to Latin phrase used to describe the doctrine of precedents generally. In translation it means to stand-by what has been decided. In BLACK’s Law Dictionary 5th Edition the doctrine has been defined to mean :

“Doctrine that, when Court has once laid-down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same, Horne v. Moddy, Tex. Civ. App. 146 S.W. 2d 505, 509, 510. Under doctrine a deliberate or solemn decision of Court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same Court, or in other Courts of equal or lower rank in subsequent cases where the very point is again in controversy. State v. Mellenberger 163 or 233, 95 P. 2d 709, 719, 720. Doctrine is one of policy, grounded on theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognised and followed, though later found to be not legally sound, but whether previous holding of Court shall be adhered to, modified or overruled is to within Court’s discretion under circumstances of case before it. Otter Tail Power Co. v. Von Bank 72 N.D. 497, 8 N.W. 2d 599, 607. Under doctrine when point of law has been settled by decision, it forms precedent which is not afterwards to be departed from, and, while it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to indicate plain, obvious principles of law and remedy continued injustice. The doctrine is a salutary one, and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it. Colonial Trust Co. v. Flanagan 344 Pa. 556, 25 A. 2d 728, 729. The doctrine is limited to actual determinations in respect to litigated and necessarily decided questions, and is not applicable to dicta or obiter dicta.”

Dennis Lloyd in his treatise, Introduction to Jurisprudence, dealing with the STARE DECISIS states :

“To follow past decisions is natural and indeed a necessary procedure in our every day affairs, to take the same course as has been taken previously, or as has usually been adopted in the past, not only confers the advantage of the accumulated experience of the past but also saves the effort of having to think out a problem anew each time it arises. Accordingly, in almost any form of organisation, precedents have to be established as guides to future conduct, and this applies not merely to legal systems but to all rule or norm-creating bodies, whether clubs, Government departments, schools, business firms and churches. There is, however, an inevitable danger that this tendency to follow precedents may lead to stereo-typed procedures and to stultify progress, and much of the working success of any organisation may depend on its ability to apply Precedents creatively. The infinite variability of the facts in human situation comes to the assistance of mankind not only by rendering it impossible to apply past rulings purely mechanically, but providing scope for the gradual moulding of the rules, to meet fresh situations as they arise. There is a constant interaction between rules and the factual situations which they govern, for a too rigid observance of the rules may, stereo the very structure and activities of society itself, whereas a freer approach will allow a richer interplay of social forces.

While restraint in exercising the judicial power to overrule precedents makes for stability, abstention can defeat this very stability. For a practice of rigid adherence to precedent will eventually produce an accumulation of outmoded rules which are likely to be blurred by artificial distinctions.

Precedent has thus always been the life-blood of legal systems, whether primitive, archaic or modern. It is, of course, particularly prominent in the common law, but barely less so in modern civil law. The special features of the present day common law system of precedent may, perhaps, be summarised as (i) a particular emphasis on judicial decisions as the core of the legal systems, (ii) a very subordinate role conceded to juristic writings, as against decisions of the Courts, in the exposition of the law; (iii) the treatment of certain judicial decisions as binding on other judges; and (iv) the form of judicial judgments and the mode of reporting these.”

Salmond on Jurisprudence has emphasised the authority of the precedents and states that judicial precedent is not merely evidence of law but is source of it, and the Courts are bound to follow the law so established. The practice to follow the precedents is necessitated to secure the certainty of law, predictability of decision being more important than approximation of an ideal.

The doctrine of STARE DECISIS requires a careful weighing in each doubtful case of the advantages of adherence to the precedent and the necessity for judicially planned social and legal process. It is also true that this doctrine has Limited application in the field of the Constitutional law and has to be rarely applied.

In India the Apex Court dealt with the rule of STARE DECISIS in S. Nagaraj v. State of Karnataka, (1994-I-LLJ-851), and noted that rule of STARE DECISIS is followed for consistency and is not inflexible in Administrative Law as in Public Law and if the Court is satisfied that on account of its earlier order injustice is likely to be occasioned to a citizen, it was the Constitutional and legal obligation of the Court to set it right by recalling its earlier order. It was held :

“Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not leave exercised that jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities art if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order.”

14. In Minerva Mills Ltd. and others v. Union of India and Others , relying upon the doctrine of STARE DECISIS, Bhagwati, J., upheld the Constitutional validity 3 of Clause (A) of Article 31 of the Constitution holding –

“It is no doubt true that this Court has power to review its earlier decisions or even depart from them and the doctrine of stare decisis cannot be permitted to perpetuate erroneous decisions of this Court to the detriment of the general welfare of the public. There is indeed a school of thought which believes with Cardozo that “the precedents have turned upon us and they are engulfing and annihilating us, engulfing and annihilating the very devotees that worshipped at their shrine” and that the Court should not be troubled unduly if it has to break away from precedents in order to modify old rules and if need be to fashion new ones to meet the challenges and problems thrown upon by a dynamic society. But at the same time, it must he borne in mind that certainty and continuity are essential ingredients of rule of law.”

And further held :

“There may be cases where it may be necessary to rid the doctrine of its petrifying rigidity. “Stare decisis’ as pointed out by Brandeis” is always a desideratum, even in these constitutional cases, but in them, it is never a command.” The Court may in an appropriate case overrule a previous decision taken by it, but that should be done only for substantial and compelling reasons. The power of review must be, exercised with due care and caution and only for advancing the public well-being and not merely because it may appear that the previous decision was based on an erroneous view of the law. It is only where the perpetuation of the earlier decision would be productive of mischief or inconvenience or would have the effect of deflecting the nation from the course which has been set by the Constitution makers or to use the words of Krishna lyer, J. in Ambika Prasad Misra v. State of U. P., AIR 1980 SC 1942, where national crisis of great moment to the life, liberty and safety of this Country and its millions are at stake (sic) of the basic direction of the nation itself is in peril of a shake-up “that the Court would be justified in reconsidering its earlier decision and departing from it”.

15. In Vidya Charan Shukla v. Purushotham Lal Kaushik , it was observed that Court should not dilate on hypothetical or academic issues in absence of any specific question in that regard being raised and should instead abide by the principles of Stare Decisis.

16. In Bachan Singh v. State of Punjab, AIR 1982 SC 1825, Bhagwati, J. observed that the rule of Stare Decisis was not a rigid and inflexible rule of law but is a rule of practice adopted by the Court for the purposes of ensuring uniformity and stability in the law. The object of the rule is to avoid chaos and confusion and to protect the rule of law. Issues which transcend technical considerations of Stare Decisis cannot be made a basis to adhere to such a rule which may under special circumstances amount to abdication of the constitutional duty of the Court on persisting to consider such issue under the technicalities.

The certainty, consistency and continuity in law are desirable features which have to be kept in mind and where a decision is shown to have stood the test of time, it ought to be respected except where there are compelling and strong reasons to depart from it.

17. In Ram Adhar Singh (dead) through LRs, and Others v. Bansi (dead) through LRs. and Others . It was held that the law settled by the consistent view of the High Court prevailing over a sufficient length of time stands concluded by the doctrine of Stare Decisis and taking a contrary view would not only imply unsettling such a well settled view but also have the effect of reopening transactions past and future dosed all over the State.

A critical analysis of various judgments of the Apex Court and in the light of the views expressed by the internationally renowned jurists it can be said that the rule of stare decisis can be held to be applicable in cases where it is established;

(a) that the earlier law laid down by the Court was not contrary to any of the fundamental rights or the Constitutional provision and adherence to such earlier law was necessary for the purposes of maintaining certainly, consistency and continuity in law.

(b) a decision which is shown to have stood the test of time should not be disturbed on account of a subsequent judgment unless there are compelling and strong reasons to depart from it.

(c) the principle is to adhere to precedents and not to unsettle things which are settled, accepted and acted upon.

(d) the principle binds the ratio of the earlier decision and not its conclusions.

(e) such a rule would be followed if it is shown that on account of the earlier decision no substantial injustice was likely to be occasioned to a citizen, however, such a rule shall not prevent the Court from reviewing its earlier order if it is shown that adherence to the earlier decision would be against the fundamental rights and Constitutional provisions.

(f) that by adherence to the earlier decision no injustice was likely to be occasioned and that such decision was not against the Public Policy.

(g) despite judgment of a larger Bench to the contrary resort to Stare Decisis with respect to earlier decision can be had only in rarest of rare cases.

18. Applying the ratio of various judgments and authorities as noted herein above in the instant case it would be evident that the doctrine of Stare Decisis can be applied by holding that even though the judgment in the Shetty’s case (supra) was seen over-ruled, that the Regulations promulgated by the respondents would be applicable in the case of the appellants herein for the reasons :

(1) that the impugned Regulations had held the field, were acted upon and practised for over a period of quarter of the century.

(2) the judgment of Shetty’s case (supra) confirmed by the Apex Court and remained in force till the detailed judgment of the Full Bench was pronounced,

(3) hundreds of cases are stated to have been decided on the basis of K. V. R. Shetty’s case (supra) and if the same is held to be not applicable flood-gates of litigation would open resulting in the failure of justice.

(4) no fundamental or Constitutional right is shown to have been violated,

(5) the plea raised is technical and even if the judgment in Shetty’s case is set aside the respondent-State can enforce the same regulations by issuing a fresh notification in terms of Section 13B of Industrial Employment (Standing Orders) Act,

(6) non-application of Shetty’s judgment would not result in failure of justice and in no case cause injustice to the citizens, or against the public policy.

(7) that the plea raised on behalf of the appellants is essentially a technical plea which though sustainable yet cannot be made a basis of undoing the precedents which may occasion the failure of justice.

(8) holding of the non-applicability of the Regulations would not only lead to fresh litigation but would also create chaos and confusion resulting in indiscipline in the service and that no right of the appellants have been taken away by Shetty’s judgment.

(9) all the employees are admitted to have joined the service of the respondent-Corporation after Shetty’s judgment being fully aware that regulations in question were governing their Service conditions.

(10) and that the present case is the rarest of the rare cases which requires the application of the doctrine of stare decisis despite the fact that the basis of the law laid down in Shetty’s case has been over-ruled by a Full-Bench in a subsequent judgment.

19. In view of what has been discussed herein above even though the reasonings of the judgment of the Learned Single Judge in upholding Shetty’s case (supra) is liable to be set aside yet the conclusions arrived at by him cannot be disturbed. Similarly, despite the fact that K. V. R. Shetty’s case (supra) stands over-ruled by the Full-Bench in Pandavapura Sakkare Kharane Ltd. v. The presiding Officer, Additional I. T. Bangalore case, (supra) the K.S.R.T.C. Servants (Conduct & Discipline) Regulations, 1971 are declared to be the Regulations governing the service conditions of all the employees of respondent-Corporation including the appellants herein. The appeals and the Writ Petitions filed by the appellants are dismissed for the reasons detailed hereinabove. The judgment of the Learned Single Judge in so far as it declares that the law laid-down by the Full Bench in Pandavapura Sahakara Sakkare Kharkane Ltd. v. The Presiding Officer, I. T., Bangalore (supra) case was not applicable to the appellants shall stand set-aside despite confirming the conclusions and the observations made regarding the individual merits of the cases.

20. Parties to bear their own costs.


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