Delhi Transport Corporation vs Mrs. Vidyawati & Ors
2009 Latest Caselaw 930 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP (C) No. 1641/1999

               Judgment reserved on: February 06, 2009
               Judgment delivered on: 23.3.2009
%

Delhi Transport Corporation              ...... Petitioner

                                Through: Mr. Uday Tiwari, Advocate

                       versus

Mrs. Vidyawati & Ors.                           ..... Respondents
                                Through: Mr. Parag Chawla, Advocate
                                with Ms. Nishi Chaudhary, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                               Yes

2.     To be referred to Reporter or not?                            Yes

3.     Whether the judgment should be reported
       in the Digest?                                                Yes

KAILASH GAMBHIR, J.

*

1. By way of this petition the petitioner DTC seeks

issuance of writ and directions in the nature of mandamus to

quash the award dated 7/10/1998 passed by the learned Labour

Court.

2. The brief facts relevant for deciding the present case

are as under:-

The deceased workman was an ex-serviceman and

served the Indian Army for 19-1/2 years. He joined DTC as a

driver on 24.11.1981 and his badge No. was 10504 & P.I. No.

was 21278. He suffered heart attack in the course of his

employment with the DTC and after recovering from the said

attack he was recommended by the doctors, both at Military

Hospital and Dr. Ram Manohar Lohia Hospital where he was

treated that he should be given light duty. The said certificates

were presented before the Management and the Management of

DTC advised him to appear before the Medical Board of DTC.

The Medical Board advised the Management of DTC to give him

light duty but the Management did not give him light duty. He

requested the Management to protect his pay scale and to give

him any light duty in the equivalent rank but instead of giving

him light duty, his services were terminated by taking recourse

to clause 14 (1) (c ) & (b) of Regulations of 1952 without giving

opportunity of being heard. Assailing the said termination order

an industrial dispute was raised by the workman and upon

reference being made by the Secretary, Labour Department an

award dated 7.10.1998 was passed by the Labour Court directing

reinstatement with full back wages and continuity of service.

Aggrieved with the said award, present petition has been

preferred by the Management DTC.

3. Mr. Uday Tiwari counsel for the petitioner contended

that the present case is completely covered by the decision of the

Apex court in the matter of DTC vs. Prakash Chand in Civil

Appeal No. 7110-7111/2004 dated 18/4/2006 and the said

judgment has been followed by this court in its various decisions

and thus, the ratio of the said judgment should be applied in the

instant case as well. In support of this contention the counsel

relied on the decisions of the Division Bench of this court in DTC

vs. Om Prakash in LPA No. 14/2004 dated 19/12/2006 and

in Ram Dutt vs. DTC in LPA No. 156/2001 dated 17/8/2006

and on the decision of the single judge of this court in Ram

Kishan vs. DTC in WPC No. 15176/2006 dated 16/10/2006.

4. Per contra, Mr. Parag Chawla counsel for the

respondent no. 1 workman refuted the contention of the counsel

for the petitioner and submitted that the decision of the Apex

Court in Prakash Chand's Case (Supra) was made in peculiar

facts of that case and with the consent of the parties to the said

case thus, the same would not be considered as „law declared‟

under Article 141 of the Constitution of India and therefore,

cannot be taken as a precedent. The counsel also urged that in

the said judgment of Prakash Chand's Case (Supra), the

Hon‟ble Apex Court itself held that the decision was being given

without going into the questions of law raised in the said case,

therefore, the same is not applicable in the instant case and the

Division Bench judgment from which the appeal was preferred to

the Apex Court would be applicable. The counsel further

contended that since in the instant case the workman and his

wife, both have expired thus, the relief given in Prakash

Chand's Case (Supra) will not apply to the present case.

5. Refuting the said contentions of the counsel for the

respondent no. 1 the counsel for the petitioner submitted that

the decision of the Division Bench merged with the decision of

the Apex Court in Prakash Chand's Case (Supra) and thus,

Division Bench‟s judgment is no more in force. In support of this

contention, the counsel relied on Kunhayammed and Ors vs.

State of Kerela & Anr. - (2000) 6 SCC 359.

6. I have heard learned counsel for the parties and

perused the record.

7. The two questions arising in this petition are:

(a) whether the decision of the Apex Court in Prakash Chand's case (Supra) without deciding questions of law and with the consent of the parties and in the peculiar facts of the case can be taken as a precedent. Or not

(b) Whether the question of law decided by the Division Bench shall hold good and binding.

8. Before dealing with the issues, it would be worthwhile

to reproduce Article 141 of the Constitution of India, which is as

follows:

"141. Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India."

9. Upon plain reading of this Article it is manifest that

Article 141 of the Constitution of India mandates that the law

declared by the Supreme Court shall be binding on all courts

within the territory of India. The law declared by the Supreme

Court is the law of the land. In terms of Article 141 of the

Constitution, the Supreme Court is enjoined to declare law. It is

a precedent for itself and for all Courts/ tribunals and authorities

in India as held in Rupa Ashok Hurra v Ashok Hurra (2002) 4

SCC 388. The Supreme Court is not a mere interpreter of the

existing law. As a wing of the State, it is a source of the law.

What is binding is the ratio of the decision and not any finding on

facts, or the opinion of the Court on any question which was not

required to be decided in a particular case. The law that will be

binding under Article 141 would extend only to the observations

on the points raised and decided by the Court in a case. When

some principle has been laid down by the Supreme Court or

some practice is deprecated, it is the duty of the High Court or

lower Court to follow the decision of the Supreme Court, even

though it may not have the approval of the Judge of the High

Court or lower Court where the Supreme Court decision is cited.

The principle enunciated in Art. 141 is also referred to as the

doctrine of precedent. A decision is available as a precedent

only if it decides a question of law as held by the Hon‟ble Apex in

State of Punjab and Ors. Vs. Surinder Kumar & Ors. -

(1992) 1 SCC 489. In this regard the Hon‟ble Apex Court

observed as under in Director of Settlements, A.P. v. M.R.

Apparao,(2002) 4 SCC 638 the Apex Court observed as under:

"7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is

binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law" it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur and AIR 1973 SC

794). When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See Narinder Singh v. Surjit Singh9 and Kausalya Devi Bogra v. Land Acquisition Officer10.) We have to answer the first question bearing in mind the aforesaid guiding principles. We may refer to some of the decisions cited by Mr Rao in elaborating his arguments contending that the judgment of this Court dated 6-2-19861 cannot be held to be a law declared by the Court within the ambit of Article 141 of the Constitution. Mr Rao relied upon the judgment of this Court in the case of M.S.M. Sharma v. Sri Krishna Sinha wherein the power and privilege of the State Legislature and the fundamental right of freedom of speech and expression including the freedom of the press was the subject-matter of consideration. In the aforesaid judgment it has been observed by the Court that the decision in Gunupati Keshavram Reddy v. Nafisul Hasan relied upon by the counsel for the petitioner which entirely proceeded on a

concession of the counsel cannot be regarded as a considered opinion on the subject. There is no dispute with the aforesaid proposition of law."

10 . It would be thus evident that every decision of the Apex

Court can not be applied mechanically to have a binding effect.

To illustrate, the following kind of decisions cannot be deemed to

be a law declared to have a binding effect as is contemplated by

Article 141:

(a)The decision that is not express;

(b)The decision not founded on reasons;

(c)The decision that does not proceed on consideration of the issue 11 . Decisions per incuriam and sub-silentio are also not

binding. These two doctrines constitute exceptions to the rule of

precedents. The expression per incuriam means „resulting from

ignorance of‟. A decision is said to be rendered per incuriam if a

relevant statute or a binding authority is not brought to the

knowledge of the judge or is not perceived by the judge at the

time of passing the order. Another exception to the rule of

precedents is the rule of sub- silentio. A decision is sub-silentio

when the point of law involved in the decision is not perceived by

the Court or not present to its mind. A decision not expressed,

not accompanied by reasons and not proceeding on a conscious

consideration of an issue cannot be deemed to be a law declared

to have a binding effect as is contemplated by Article 141.

12 . It is no more res integra that the decision on facts is

not a precedent under Article 141 of the Constitution of India. In

this regard the Hon‟ble Apex Court observed as follows in

Mehboob Dawood Shaikh v. State of Maharashtra,(2004) 2

SCC 362

"There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if they were, said Bose, J., about half a century back in Willie (William) Slaney v. State of M.P.4 (SCR at p. 1169). A decision is available as a precedent only if it decides a question of law. A judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court divorced from the context of the question under consideration and treat it to be complete law decided by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. [See CIT v. Sun Engg. Works (P) Ltd.5]"

13 . It is also well settled that the rule of restraint in

disturbing the earlier flow of law is not an absolute rule and it is

so only for the sake of uniformity. In this regard the Hon‟ble

Apex Court observed as follows in State of U.P. v. Synthetics

and Chemicals Ltd., (1991) 4 SCC 139

"A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry 15 it was observed, „it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein‟. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.

Law declared is not that can be culled out but that which is stated as law to be accepted and applied. A conclusion without reference to relevant provision of law is weaker than even casual observation."

14 . It is well settled that a decision on the peculiar facts of

the case cannot be treated as a precedent and the Courts should

not mechanically apply the decisions as Euclid‟s theorem

without discussing as to how the factual situation fits in with the

fact situation of the decision on which reliance is placed. In this

regard the Hon‟ble Apex Court observed as follows in Chief

Secretary v. Students of A.P.A.U.,(2005) 12 SCC 448:

"7. Since the High Court had passed this order, on the facts and circumstances of the case, on humanitarian grounds, it would not be treated as a precedent for any future reference."

There is also no dispute as regards the legal position that a

judgment on concession without discussing any law is not a

precedent. In this regard the Hon‟ble Apex Court in Lakshmi

Shanker Srivastava v. State (Delhi Admn.), (1979) 1 SCC

229, observed as under:

"11. Mr Lal in this connection drew our attention to a decision in R.J. Singh Ahluwalia v. State of Delhi1. The appellant in that case was at the relevant time working as Assistant in Co- ordination III of DGTD at Udyog Bhawan, New Delhi. His contention was that sanction accorded by Shri K. Rajaram, Deputy Secretary to Government of India in the Ministry of Industrial Development and Company Affairs (Department of Industrial Development) was not valid and that he could only have been prosecuted under a sanction that may be accorded by the Home Ministry. In respect of this contention it was conceded on behalf of the State that in the absence of such sanction the prosecution must fail. The judgment proceeds on concession and not on any analysis or examination of the relevant provisions. Therefore, it in no way helps the appellant in this case."

15 . In view of the above discussion and considering the

following para of the Apex Court decision in Prakash Chand's

Case (Supra) it is manifest that the decision of the Apex court

was on peculiar facts of that case, with consent of the parties and

without discussing the questions of law, therefore, the same has

no precedential value. Also, as discussed above, the mere fact

that the said judgment was being followed by this Court in cases

as referred above would not come in the way of taking a different

view as the same is inimical to the growth of law.

"Considering the peculiar nature of the controversy and without going in to the questions of law raised, we feel that on the special circumstances involved, interest of justice would be best served if the following order is passed:

(1)........."

16 . In view of the foregoing, the first question is replied in the negative.

17 . Coming to the next question that since the Apex

Court‟s decision is not a precedent, would the decision of the

Division Bench shall holds good as a precedent. It is discussed

above that the decision of the Apex Court was based on peculiar

facts of the case and the questions of law were not discussed

thus, clearly, there was no reversal, modification or affirmation

of the order of the Learned Division Bench by the Hon‟ble Apex

Court on the questions of law, therefore, the doctrine of merger

would not apply and thus questions of law as settled by the

Hon‟ble High Court still holds good. It is well established that the

doctrine of merger is a common law doctrine founded on

principles of propriety in the hierarchy of justice delivery system.

The doctrine of merger proposes that an order appealed against

no longer exists once the appellate authority passes its own

order on the issue. In other words, the first order merges with

the order of the higher appellate authority. But the same has

some exceptions. In Kunhayammed v. State of Kerala, (2000)

6 SCC 359, the Hon‟ble Apex Court observed as under:

12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way -- whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.

18 . In view of the foregoing, it is manifest that the doctrine

applies only when the order appealed from is reversed, modified

or affirmed by the Appellate Court, but herein, the Supreme

Court remained silent on the question of law and thus, the

decision of the Division Bench on the question of law remains

undisturbed.

19 . In the light of the above discussion, following the

Division Bench Judgment in Prakash Chand's Case (Supra),

whereby the order of Single Judge was upheld, wherein, the

decision of the tribunal of awarding reinstatement with

backwages was upheld, and keeping in view that the deceased

and his wife have already expired and no directions can be given

for reinstatement, therefore, the petitioner DTC is directed to

pay full backwages to the Legal representatives of the deceased

from the date of his termination till the date of his death or date

of superannuation, whichever is earlier, within 4 weeks from this

order.

20 . In view of the above discussion, the petition is

dismissed with above directions.

23rd March, 2009                        KAILASH GAMBHIR, J