PRADIP CHANDRA PARIJA AND ORS.versusPRAMOD CHANDRA PATANAIK AND ORS.

A                      PRADIP CHANDRA PARIJA AND ORS.
                                             v.
                    PRAM OD CHANDRA PATANAIK AND ORS.

                                  DECEMBER 4, 200 l

B       [S.P. BHARUCHA, CJ., SYED SHAH MOHAMMED QUADRI,
      UMESH C. BANERJEE, SN. VARIAVA AND SH!VARAJ V. PATIL, JJ.]

           Constitution of India, I950/Supreme Court Rules I960.

           Articles I45(2) and (3)/0rder VII, Rules(!) and (2)-Supreme Court-
c   Constitution of Benches and reference of matters by smaller Bench to larger
    Bench-A Two-Judge Bench not agreeing with the decision (Jf an earlier three-
    judge Bench and r~ferring the matter to five-Judge Bench-Held, judicial
    discipline and propriety deml<mls that a Bench of two Judges should.follow a
    decision (Jf a Bench (Jf three Judges-But, if a Bench o,f two Judges concludes
D   that an earlier judgment o.fthree Judges is so ve1y incorrect that in no cin·un1-
    stances can it be.followed, the proper course.for it to adopt is to r~fer the matter
    be.fore it to a Bench o.f three Judges setting out the reasons why it could. not
    agree with the earlierjudgment-If, then, the Bench o,fthree Judges also comes
    to the conclusion that the earlier judgment of three Judge-Bench is incorrect,
E   r~ference to a Bench offive Judges is justified-The only situation when a two
    Judge-Bench may re.fer a matrer directly to a Constitution Bench is when the
    provisions of clause (3) of Article I 45 are attracted-In the instant case, the
    Bench of two Judges has, in terms, doubted the correctness o,f decision o,f three-
    Judge Bench-By a judicial order the matter before the Bench (!{two Judges
F   were ordered to be placed before a Bench o,ffive Judges-The Chi~f Justice, as
    nutster o.fthe cause lists, l-vas required only to issue consequential adnzinistra-
    tive direccions-Matters could only have been r~ferred to a Bench of three
    Judges-Accordingly, they shall be placed b~fore a Bench o,f three Judges-
    Judicial Discipline-Judicial Pmpriery.

G         Nityananda Kar and Anr. etc. v. Stale of Orissa and Anr., [1990] Suppl.
    2 SCR 644, referred to.

          Bharat Petroleum Cmporation Limited v, Mumbai Shramik Sangha and
    Ors., [2001] 4 sec 448 and Sub-Committee Oil Judicial Accountability v.
    Union(!{ India and On., [1992] 4 sec 97, relied on.
H
                                           460
      PRADIP CHANDRA PARIJA v. PRAMOD CHANDRA PATANAIK                      461

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 791 of 1993.                    A

     From the Judgment and Order dated 23.4.91 of the Orissa Administrative
Tribunal, Bhubaneswar in T.A. No. 402 of 1986.

                                    WITH
                                                                                    B
      W.P. (C) No. 611 of 1992.

      Soli J. Sorabjee, Attorney General, Sudhir Chandra Parmanand Gaur,
Dipankar P. Gupta, Suchit Mohanty, Abhisth Kumar, Abhijit Sengupta, Vinoo
Bhagat, Achintya Dvivedi, Ms. Manish Singhvi, Ms. Kirti Mishra, Raj Kumar           C
Mehta, Ms. M. Sarada and Abhishek Awasti for the appearing partes.

      The folloinwg Order of the Court was delivered :

      These matters come to be placed before this Bench of five Judges by           D
reason of an order passed on 24th October, 1996 by a Bench of two learned
Judges. The two learned Judges stated in that order that they had been taken
through the judgment of this Court (delivered by a Bench of three learned
Judges) in Nityananda Kar and Anr. etc. v. State of Orissa and Anr.. [1991]
Suppl. 2 SCR 644 and that, "with utmost respect"., they did "not agree with         E
the reasoning and the conclusions reached therein". The learned Judges set out
four reasons why they disagreed with the said judgment. They then directed
that these matters "be placed before a larger bench of five Judges of this Court.
The Registry to place the papers before Hon'ble the Chief Justice for appro-
priate orders in this Case.".
                                                                                    F

      The question is whether two learned Judges of this Court can disagree
with a judgment of three learned Judges of this Court and whether, for that
reason, they ean refer the matter before them directly to a Bench of five Judges?

      We may point out, at the outset, that in Bharat Petmleum Corporation          G
Limited v. Mumbai Shramik Sangha and Ors., [2001] 4 SCC 448, a Bench of
five Judges considered a some what similar question. Two learned Judges in
that case doubted the correctness of the scope attributed to a certain provision
in an earlier Constitution Bench Judgment and, accordingly, referred the matter
before them directly to a Constitution Bench. The Constitution Bench that then      H
    462                  SUPREME COURT REPORTS                 [2001] SUPP. 5 S.C.R.
A   heard the mailer took the view that the decision of a Constitution Bench binds
    a Bench of two learned Judges and that judicial discipline obliges them to
    follow it, regardless of their doubts about its correctness. At the most, the
    Bench of two learned Judges could 'have ordered that the matter be heard by
    a Bench of three learned Judges.
B
          Learned counsel for the appellants drew our attention to the provisions
    of Article 145, clauses (2) and (3) of the Constitution of India. Clause (2)
    empowers the making of rules to fi< the minimum number of Judges of this
    Court to sit for any purpose. Clause (3) says that the minimum number of
    Judges who are to sit for the purpose of deciding any case involving any
c   substantial question of law as to the interpretation of the Constitution or for the
    purpose of hearing any reference under Article 143 shall be five. Learned
    counsel drew our attention to Order VII, Rules (I) and (2) of the Supreme Court
    Rules, 1966. Rule (I) says that every cause, appeal or matter shall be heard by
                                                                                          ..
    a Bench consisting of not less than two Judges nominated by the Chief Justice.
D   Clause (2) says that where, in the course of the hearing of any cause, appeal
    or proceeding, a Bench considers that the matter should l)e dealt with by a
    larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon
    constitute such a Bench for the hearing of it. Learned counsel submitted that
    the Bench of two learned. Judges that made the reference in this case did not
E   over-rule the judgment of three learned Judges in the case of Nityananda Kar,
    as they could have, on the basis of an earlier Constitution Bench judgment
    (which, incidentally, is not even mentioned in the referral order), but had
    chosen to refer it to the Chief Justice who had constituted a Constitution Bench.
    In learned counsel's submission, circumstances could arise where it would be
F   permissible for a Bench of two learned Judges directly to make a reference to·
    a Constitution Bench; for example, when two judgments of a Constitution
    Bench were in conflict with each other or a Judgment of a three-Judge Bench
    was per incuriant. In learned counsel's submission, the present was a case
    which justified the reference directly to a Constitution Bench.
G
           The learned Attorney General submitted that a Constitution Bench judg-
    ment of the Court was binding c1n smaller Benches and a judgment of three
    learned Judges was bindiag on Benches of two learned Judges - a proposition
    that learned counsel fm the appdlants did not dispute. The learned Attorney•
    General drew our attention to the judgment of a Constitution Bench in Sub-
H
       PRADIP CHANDRA PARIJA '" PRAMOD CHANDRA PATANAIK                      463
Commiltee on Judicial Accountability v. Union of India and Ors., [I992] 4             A
sec 97 where it has been said that "no co-ordinate bench of this Court can
even conunent upon, let alone sit in judgment over the discretion exercised or
judgment rendered in a cause or matter before another co-ordinate Bench". The
learned Attorney General submitted that the appropriate course for the Bench
of two learned Judges to have adopted, if it felt so strongly that the judgment       B
in Nityananda Kar was incorrect, was to make a reference to a Bench of three
learned Judges. That Bench of three learned Judges, if it also took the same
view of Nityananda Kar, could have referred the case to a Bench of five learned
Judges.


      In the present case of the Bench of two learned Judges has, in terms,
                                                                                      c
doubted the correctness of a decision of a Bench of three learned Judges. They
have, therefore, referred the matter directly to a Bench of five, Judges, in our
view, judicial discipline and propriety demands that a Bench of two learned
Judges should follow a decision of a Bench of three learned Judges. But if a
Bench of two learned Judges concludes that an earlier judgment of three
                                                                                      D
learned Judges is so very incorrect that in no circumstances can it be followed,
the proper course for it to adopt is to refer the matter before it to a Ben.ch of
three learned Judges setting out, as has been done here, the reasons why it could
not agree with the earlier judgment. If, then the Bench of three Learned Judges
also comes to the conclusion that the earlier judgment of a Bench of three            E
learned Judges is incorrect, reference to a Bench of five learned Judges is
justified.


        It is not necessary for us to go into the hypothetical cases spoken of by
 learned counsel for the appellants where a reference directly by a Bench of two      F
.learned Judges to a Constitution Bench would be justified. Suffice it to say that,
 for the present, we find it very difficult to accept the correctness of such
 hypothesis. The only situation when a two Judge Bench may refer a matter
 directly to a Constitution Bench is when the proyisions of clause (3) of Article
 145 are atlracted.                                                                   G

      We have quoted the releva" ·. portion of the referral order in the present
case. By a judicial order the ma'.. ers before the Bench of two learned Judges
were order to be placed before a Bench of five learned Judges. The Chief
Justice, as master of the cause lists, was required only to issue consequential       H
    464                  SUPREME COURT REPORTS               [2001) SUPP. 5 S.C.R.
A   administrative directions.

           In the result, we are of the view that these matters could only have been
    referred to a Bench of three learm:d Judges. We, accordingly, order that they
    shall be placed before a Bench of three learned Judges. Having regard to the
B   lapse of time, they shall be so placed in January, 2002.

    R.P.                                                   Matter is still pending.