1. Heard.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners are challenging the order dated 29.08.2005 passed by the Employees Provident Fund Appellate Tribunal, New Delhi holding pigmy agent would not be employee within the meaning of Section 2(f) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short, “the Act of 1952”).
3. Shri H. N. Verma, learned Advocate for the petitioners, submitted that issue involved in the present petition is squarely covered by the judgment of the learned Single Judge of this Court in Writ Petition No. 5154/2016 in the case of Sanmitra Urban Cooperative Bank Ltd. Vs. Assistant Provident Fund Commissioner [2019 (6) Mh.L.J. 567]. Therefore, he prayed for remanding the proceedings to the Provident Fund Commissioner for holding an enquiry under Section 7(A) of the Act of 1952 in the light of parameters laid down by the Division Bench of this Court in the case of The Pachora Peoples’ Co-operative Bank Ltd. Vs. The Employee Provident Fund Organization [2014 (4) Mh.L.J. 436].
4. Shri R. L. Khapre, learned Senior Advocate submitted that the respondent-bank being registered under Multi-State Co-operative Societies Act, provisions of the Act of 1952 would not be applicable. Therefore, the judgment of the learned Single Judge of this Court in the case of Sanmitra Urban Co-operative Bank Ltd. (supra) would not be applicable to the facts of the present case. According to him, even otherwise, the judgment in Writ Petition No. 5154/2016 in the case of Sanmitra Urban Co-operative Bank Ltd. is per incuriam. It, therefore, does not apply to the facts of the present case. In support of his contention, he placed reliance on the following judgments:-
(i) Sanmitra Urban Co-operative Bank Ltd., Akola Vs. Assistant Provident Fund Commisisoner, Akola [2019 (6) Mh.L.J. 567]
(ii) Director of Settlements, A. P. Vs. M. R. Apparao [(2002) 4 SCC 638] [LQ/SC/2002/402]
(iii) The Pachora Peoples’ Co-operative Bank Ltd. Vs. The Employee Provident Fund Organization [2014 (3) ABR 249 [LQ/BomHC/2014/362] ].
(iv) The Pachora Peoples’ Co-operative Bank Ltd. Vs. The Employee Provident Fund Organization [2017 (2) Mh.L.J. 946].
(v) Punjab National Bank Vs. Manjeet Singh [(2006) 8 SCC 647] [LQ/SC/2006/915]
(vi) Assistant General Manager Vs. K. P. Haridas [AIROnline 2019 SC 2109] [LQ/SC/2019/773]
(vii) State of Haryana Vs. Ranbir @ Rama [AIR 2006 SC 1796 [LQ/SC/2006/311] ]
(viii) Delhi Administration Vs. Manoharlal [AIR 2002 SC 3088 [LQ/SC/2002/886] ]
(ix) Anpal Singh Vs. State of U. P. [AIR 2019 SC 5652 [LQ/SC/2019/1506] ]
(x) Ravinder Kaur Grewal Vs. Manjit Kaur [AIR 2019 SC 3827 [LQ/SC/2019/1210] ]
5. I have carefully considered the submissions made on behalf of both sides. Insofar as the contention of the petitioners that respondent-bank being registered under the Multi-State Co-operative Societies Act is concerned, whether the said bank is registered under the provisions of the Multi-State Co-operative Societies Act or not is the matter to be adjudicated by the Provident Fund Commissioner. Petitioners have placed on record the Registration Certificate of the respondent to demonstrate that Society is registered under the provisions of the Multi-State Co-operative Societies Act. The certificate was not placed before the Commissioner. Respondent has invited my attention to the Notification dated 10.02.2016 applying the provisions of the said Act to all banks employing 20 or more persons as the class of establishments.
6. In my view, this Court is 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 10.02.2016 are produced before this court. These documents were not available with Provident Fund Commissioner while passing impugned order. It is, therefore, necessary for Provident Fund Commissioner while adjudicating the rights of the respondent on merits that the issue of applicability of said act be decided .
7. Learned Senior Advocate for the respondent next submitted that judgment of learned Single Judge of this Court in Sanmitra Urban Co-operative Bank Ltd. (supra) is per incuriam. Therefore it is necessary to understand the exact meaning of the expression "Per incuriam”.
8. 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. Therefore, "per incuriam" are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned or a statement of the law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.
9. 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. A prior decision of the Supreme Court or High Court on identical facts and law binds the Court on the same points of law in a latter case. 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". It has to be shown that some part of the decision was based on demonstrably wrong reasoning for applying the principle of per incuriam.
10. Black's Law Dictionary, defines principle of per incuriam viz.: “A judgment per incuriam is one which has been rendered inadvertently.” It may be a case where the Judge has forgotten to take account of a previous decision to which the doctrine of stare decisis applies. 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.
11. In the article "Final Appellate Courts Overruling Their Own 'Wrong' Precedents: The Ongoing Search For Principle" by B.V. Harris, published in (2002) 112 LQR 408-27, it is stated: "A decision may be held to be per incuriam where relevant statutory provisions or binding case law authority, have been overlooked or misinterpreted in arriving at the holding in the precedent”.
12. Judgment erroneously appreciating or construing a binding precedent is not a per incuriam decision. Judgment rendered in ignorance of earlier judgments of Benches of co-equal strength would render the same per incuriam. Such judgment cannot be elevated to the status of precedent. {See: State of State of M.P. Vs. Narmada Bachao Andolan, [(2011) 7 SCC 639] [LQ/SC/2011/713] , Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, [(1990) 3 SCC 682] [LQ/SC/1990/312] , Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., [(2001) 6 SCC 356] [LQ/SC/2001/1236] , Subhash Chandra v. Delhi Subordinate Services Selection Board, [(2009) 15 SCC 458] [LQ/SC/2009/1610] }
13. Based on the above parameters laid down by the Apex Court, I have considered judgment of Single Judge of this court in Sanmitra Urban Co-operative Bank Ltd. (supra). This Court, in paragraph no. 25, has considered the petitioner's submission therein that judgment in the case of Nasik Merchant Co-operative Bank Ltd. Vs. Regional Provident Fund Organisation and The Pachora Peoples’ Co-operative Bank Ltd. Vs. The Employee Provident Fund Organization are per incuriam due to ignorance of the binding nature of settlement under Section 18(3)(d) of the Industrial Dispute Act, 1947. The learned Single Judge of this Court in paragraph nos. 21 to 25 has considered the applicability of the binding nature of Award of Industrial Tribunal at Hyderbad under Section 18(3)(d) of the Act of 1947, as modified by the High Court and confirmed by Supreme Court. The learned Single Judge has also referred to the judgment in the case of Punjab National Bank Vs. Manjeet Singh [(2006) 8 SCC 647] [LQ/SC/2006/915] .
14. Therefore, in my opinion, it cannot be said that the judgment of the Co-ordinate Bench of this Court in the case of Sanmitra Urban Co-operative Bank Ltd. (supra) has been rendered in ignorance of the judgment of the Hon'ble Supreme Court or failed to notice any statutory provision. In my opinion, the respondent has failed to satisfy this Court that judgment of learned Single Judge of this Court in the case of Sanmitra Urban Co-operative Bank Ltd. (supra) is a glaring case of obtrusive omission or based on demonstrably wrong reasoning or to notice a binding precedent or statutory provision. I am in agreement with the reasoning of the learned Single Judge of this Court in the case of Sanmitra Urban Cooperative Bank Ltd. (supra). In the result, I pass the following order:-
i) In view of the reasons in Writ Petition No. 5154/2016 and connected matters in the case of Sanmitra Urban Co-operative Bank Ltd. Vs. Assistant Provident Fund Commissioner [2019 (6) Mh.L.J. 567], the impugned order dated 29.08.2005 passed by the Employee Provident Fund Appellate Tribunal, New Delhi in ATA No. 607(9)/2001 is quashed and set aside.
ii) The dispute is remanded back to the Assistant Provident Fund Commissioner, Nagpur, to undertake inquiry under Section 7(A) of the Act of 1952, in the light of parameters laid down by the Division Bench of this Court in the case of The Pachora Peoples’ Co-operative Bank Ltd. Vs. The Employee Provident Fund Organization [2014 (4) Mh.L.J. 436].
15. Rule is made absolute in the above terms.
