In WRIT PETITION NO. 6188 OF 2005 – BOM HC – Principle of per incuriam can be applied only when judgment is rendered in contradiction to & in ignorance of a previous judgment that should have been considered binding: Bombay High Court Justice Amit Borkar – [07-07-2022]

Read Order: CENTRAL BOARD OF TRUSTEES AND ORS V. THE AKOLA JANTA COMMERCIAL CO.OPERATIVE BANK LTD 

Mansimran Kaur

New Delhi, July 11, 2022: To apply the principle of ‘per incuriam’, it has to be shown that the Supreme Court has acted in ignorance of a previous decision of its own or that a High Court has acted in ignorance of a decision of the Apex Court due to obvious inadvertence or oversight, the Bombay High Court has held.

A judgment erroneously appreciating or construing a binding precedent is not a per incuriam decision, the High Court of Bombay at Nagpur further observed.

A Single-Judge Bench of Justice Amit B. Borkar allowed the present petition preferred by the petitioners under Article 226 and 227 of the Indian Constitution. The petitioners assailed the order dated August 29, 2005 passed by the Employee Provident Fund Appellate Tribunal whereby it was observed that pigmy agents would not be employees within the meaning of Section 2(f) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. 

The bench was of the opinion that the respondent in the instant case failed to satisfy this Court that the judgment of the Single Judge of this Court in the case of Sanmitra Urban Co-operative Bank Ltd, was a glaring case of obtrusive omission or based on demonstrably wrong reasoning or to notice a binding precedent or statutory provision. 

In the present petition, it was the case of the respondent, that the respondent – bank being registered under the Multi-State Co-operative Societies Act, provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952  would not be applicable.

After giving consideration to the submissions of the parties, the Court was of the view that it was not expected for the first time, to conclusively adjudicate upon the issue of applicability of provisions of the said Act to Multi-State Co-operative Societies. 

The material in the form of registration certificate and notification dated February 10, 2016 were produced before this court. These documents were not available with the Provident Fund Commissioner while passing an impugned order. It was, therefore, necessary for the Provident Fund Commissioner while adjudicating the rights of the respondent on merits that the issue of applicability of said act be decided, the Court noted. 

Next, the Court deemed it necessary to comprehend the meaning of the word “Per incuriam”, as the contention of the respondent was that the judgment of the Single judge of this Court in the case Sanmitra Urban Co-operative Bank Ltd (supra) was per incuriam. 

In view of the same, the Court observed that the meaning of expressions per incuriam and incuria is well settled— “Incuria” literally means “carelessness”. In practice, per incuriam is taken to mean per ignoratium. The courts have developed this principle in the relaxation of the rule of stare decisis. Thus, the “quotable in law” is avoided and ignored if it is rendered in ignorance of a statute or other binding authority, the Court stated. 

“A decision can be said generally to be given per incuriam when the Supreme Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of the Supreme Court,” the Bench noted.

It further said that in exceptional instances, whereby obvious inadvertence or oversight, a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment “per incuriam”, the Bench held, adding that it has to be shown that some part of the decision was based on demonstrably wrong reasoning for applying the principle of per incuriam.

“For all the care with which Judges may scrutinize the case law, errare humanum est and sometimes a judgment which clarifies a point to be settled is somehow not indexed and is forgotten. In cases such as these, a judgment rendered in contradiction to a previous judgment that should have been considered binding and in ignorance of that judgment, with no mention of it, must be rendered per incuriam. Thus, it has no authority. The same applies to judgments rendered in ignorance of legislation of which they should have taken account. For a judgment to be deemed per incuriam, that judgment must show that the legislation was not invoked,” The Bench said.

Thus, while considering the judgment of the Sanmitra Urban Co-operative Bank Ltd (supra), the Court was of the view that the said judgment was not rendered in ignorance of the judgment of the Hon’ble Supreme Court or failed to notice any statutory provision.

It was further stated observed by this Court that the respondent in the instant case failed to satisfy this Court that the judgment of the Single Judge of this Court in the case of Sanmitra Urban Co-operative Bank Ltd (supra), was a glaring case of obtrusive omission or based on demonstrably wrong reasoning or to notice a binding precedent or statutory provision. 

In view of the aforesaid findings, the Court concluded by observing that the impugned order dated August 29, 2005 passed by the Employee Provident Fund Appellate Tribunal was liable to be set aside and quashed. The dispute was remanded back to the file of the Assistant Provident Fund Commissioner, Nagpur, to undertake inquiry under Section 7(A) of the Act of 1952.