Ashim Kumar Banerjee, J.:— This appeal was heard by us on November 15, 2006 when after perusing the judgment and order under appeal we were greatly embarrassed after going through some of the observations of His Lordship made in the judgment. We requested three stalwarts of this Court at the bar to address us only on the observations of His Lordship to be discussed hereinafter. Accordingly we adjourned the matter and heard the same on the next date i.e on November 29, 2006. We, with due respect and gratitude record our deep appreciation for the assistance rendered to us by Mr. Moitra, Mr. Moitra and Mr. Mukherjee, three eminent Counsel of this Court.

2. The writ petitioner/respondent No. 1 was an employee of Eastern Coal Fields Limited being a subsidiary of Coal India Limited. Eastern Coal Fields Limited has its registered office within the State of West Bengal so as the holding company. Respondent No. 1, however, was working in Mugma Colliery in the district of Dhanbad in the State of Jharkhand. While he was working in the said colliery he was proceeded with departmentally and ultimately suffered an order of dismissal. The entire cause of action arose outside the State of West Bengal as the respondent No. 1 was proceeded with departmentally at Dhanbad and he was dismissed by his disciplinary authority at Dhanbad. The order of dismissal was made a subject-matter of challenge in the writ petition. In support of such contention Mr. Majumdar relied on an unreported decision of the Division Bench of this Court in F.M.A No. 581 of 1999 where in an identical situation the Division Bench held that this Court had no jurisdiction to entertain the writ petition.

3. The relevant extract of the Division Bench decision so referred to by His Lordship in His Lordship's judgment is quoted below:

“As per the three Apex Court decisions, referred to above, cause of action is decisive of the matter for acquiring territorial jurisdiction to decide the matter. Simply because the head office of the company is at Calcutta is not decisive of the matter as held in the case of Oil & Natural Gas Commission v. Utpal Kumar Basu (supra) because that would not give a cause of action to the party. Cause of action is a bundle of facts which decides the territorial jurisdiction of the Court, if any of the cause of action has arisen to the party within the jurisdiction of Calcutta High Court then the High Court at Calcutta will have jurisdiction to decide the matter, simply because a head office of the company is within the territorial limits of the Calcutta High Court, that will not give jurisdiction to the Calcutta High Court unless cause of action arises within the territorial jurisdiction of Calcutta High Court.”

4. Plea of jurisdiction was taken by the appellant before the learned Single Judge. The learned Single Judge rejected such contention. While rejecting the plea of jurisdiction the learned Single Judge observed as follows:

‘As far as the aforesaid judgment is concerned, I am of the view that the ratio laid down therein is per incuriam as when the aforesaid judgment was rendered, none drew attention of their Lordship to the Constitutional provision of Article 226, Clause (2) as such the same was ignored. The said clause is set out hereunder:

“The power conferred by clause (1) to issue directions, orders of writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.”

From plain reading of the aforesaid clause (2) of Article 226, it is clear that jurisdiction of the High Court is dependent not only on accrual of causes either wholly or partly, but in relation to the seat of such Government or the authority or the residence of such person also. Prior to 15th Amendment of the Constitution the jurisdiction under Article 226 could be exercised only when respondent or all the respondents would have place of business or residence within territorial limit of the High Court irrespective of accrual of cause of action.

Later on sub-clause (2) has been substituted by way of amendment. In the aforesaid clause it is very clear that original provision has not been changed, so the High Court can entertain writ petition irrespective of accrual causes of action, if the sole respondent or all the respondents reside(s) or is (are) having place of business and/or carries on business within the territorial limit of the concerned High Court. This question was dealt with by me in another matter (Indra Deo Yadav v. Coal India Limited in Writ Petition No. 1356 of 1997) and by a judgment dated 18 September, 2003 this Court held as under:

“Upon plain reading of sub-clause (2) of Article 226 to either of two High Courts on two situations—(i) if the respondent against whom relief is sought for, is having its place of business within the territorial limit of the concerned High Court; (ii) if the cause of action has arisen partly or wholly at places within the territorial limit of the High Court concerned. Sometimes both the place may be the same i.e the place of accrual of cause of action as well as the place of business of the respondents.”

It is well-settled principle of law that pronouncement of the Court of any question of law is made ignoring the Constitutional provision as well as the statutory provision are not a binding precedent as it is held to be a per incuriam. Therefore, the aforesaid judgment cannot be a binding precedent on this aspect. I respectfully observe so.

The petitioner has said in the cause title that Coal India is the holding company having its office and place of business at No. 10, Netaji Subhas Road, Calcutta-700001. Moreover, it is an admitted position that it has got registered office at Sanctoria in the District of Burdwan within the territorial limits of the writ jurisdiction of this Court. Under this circumstances, I hold this writ petition is entertainable by this Court as the aforesaid effective respondents are within the territorial limits of this Court.

I have seen the averment of the writ petition and I do not find that the writ petition has been based on cause of action either wholly or partly. The judgment of the Division Bench would have been to some extent applicable had the writ petition been filed based on cause of action as per averment of the writ petition.

I, therefore, hold that this Court has jurisdiction to entertain the writ petition.”

5. Whether the learned Judge was right in rejecting the plea of jurisdiction or not we shall deal with the same little later. What embarrassed us on the first day on perusal of the said decision was as to whether His Lordship sitting singly was right in observing that the Division Bench decision referred to (supra) was per incuriam and had no binding effect.

6. On this issue we asked the learned senior Counsel named above to address us. Accordingly all three of them not only ably assisted us but also took immense pain by causing a thorough research on the issue and gave us the best precedents on this point that we would be discussing hereinafter.

7. The following judgments were cited on this issue:

(i) AIR 1961 SC Page 532 (Lt. Col. Khajoor Singh v. Union Of India & Another)

(ii) AIR 1965 SC Page 1767 (Lala Shri Bhagwan v. Ram Chand)

(iii) AIR 1970 SC Page 1002 (Ballabhdas Mathuradas Lakhani v. Municipal Committee, Malkapur)

(iv) 1972, All ELR Page 801 (Cassell & Co. Ltd. v. Broome)

(v) 1983, Labour and Industrial Cases, Page 230 (Soloman Raju v. Accountant General, Andhra Pradesh, Hyderabad)

(vi) 1989 (3) SCC Page 396 (Sundarjas Kanyalal Bhatija v. Collector, Thane, Maharashtra)

(vii) 2001 (6) Fuerst Day Lawson Ltd. v. Jindal Exports Ltd..)

(viii) 2002 (1) CLJ Page 115 (Ahamed Hossain Sk. v. State Of West Bengal & Ors.)

(ix) 2004 (4) SCC Page 590 (State through S.P, New Delhi v. Ratan Lal Arora)

(x) 2004 (7) SCC Page 558 (Nirmal Jeet Kaur v. State of M.P)

(xi) 2004 (8) SCC Page 387 (Mukesh K. Tripathi v. Senior Divisional Manager, LIC)

8. In addition to the aforesaid decisions reliance was placed on the comments made by Salmond on Jurisprudence and Dias on Jurisprudence.

9. On a combined reading of the aforesaid decisions and the observations made by Salmond and Dias we find that a precedent of a higher Court is always binding upon a lower Court.

10. If the precedent of a higher Court is contrary to the precedent of another Court which is higherer than the higher Court the precedent of the higher Court would not be binding upon the lower Court.

11. In our country the decisions of the Apex Court always have a binding effect on the High Court and lower Courts irrespective of the question of legality.

12. The aforesaid three eventualities, however, did not have any application in the instant case. In this case, the learned Single Judge observed that the Division Bench decision was per incuriam and as such did not have any binding effect. Per se His Lordship could be right in case the higher Court decision overlooked any legal provision or their decision was contrary to the legal provisions. Such decision is called as “per incuriam” and is considered to be a mistake and a lower Court can ignore such decision although having a binding effect. To that we do not find any illegality.

13. We, however, wish to look to this problem from a different angle. There are ways and means to avoid user of unpleasant words. User of the word “per incuriam” could have been avoided specially when a precedent was otherwise having a binding effect. The user of the said word could be avoided in a modest way. The learned Single Judge, in our view, could have adopted such procedure. In a similar case the Division Bench held the writ petition to be not maintainable relying on an Apex Court decision in the case of Oil and Natural Gas Commission v. Utpal Kumar Basu, reported in 1994 (4) SCC Page 711. His Lordship could have held on examination of facts of the case before His Lordship that this High Court had territorial jurisdiction and thereafter could have referred it to the Hon'ble Chief Justice for referring the issue to a large Bench. The Apex Court in the case of Sundarjas Kanyalal Bhatija (supra) relying on the earlier decision in the case of Lalashree Bhagwan (supra) observed that if a Single Judge is inclined to take the view that the Division Bench decision need to be reconsidered he should not embark upon the enquiry sitting as a Single Judge but should refer it to the Hon'ble Chief Justice in appropriate case to enable his to constitute a larger Bench to examine the question and that would be healthy principles of judicial decorum and propriety.

14. Paragraphs 17, 18, 19 and 20 of the said decision being relevant herein are quoted below:

“17. It would be difficult for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned Single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.

18. Deprecating this kind of tendency of some Judges, Das Gupta, J., in Mahadeolal Kanodia v. Administrator-General Of West Bengal , AIR 1960 SC 936 said (at p. 941):

“We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin's case, 53 CWN 64: AIR 1954 Cal 119 was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring no less than legal propriety form the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of co-ordinate jurisdiction in a High Court start overruling one another's decision.

19. The attitude of Chief Justice, Gajendragadkar, in Lala Shri Bhagwan v. Ram Chand, AIR 1966 SC 1767 was not quite different (at page 1773):

“It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Judges departed from this traditional way in the present case and choose to examine the question himself”.

20. The Chief Justice Pathak, in a recent decision stressed the need for a clear and consistent enunciation of legal principle in the decisions of a Court. Speaking for the Constitution Bench (Union of India v. Raghubir Singh, 1989 (2) SCC 754 : AIR 1989 SC 1933 learned Chief Justice said (at p. 766): (of SCC): (at p. 1939 of AIR):

“The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.”

Cardozo propounded a similar thought with more emphasis:

“I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly by some consideration of history or custom or policy or justice. Lacking such a reason, I must be logical just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another”. (The nature of the Judicial Process by Benjamin N. Cardozo p. 3).”

15. In our view, assuming that the learned Single Judge was right in the facts and circumstances to come to a conclusion that the earlier Division Bench decision was not the correct law with all humility and the deepest regard we have for His Lordship, the matter could be referred to the Hon'ble Chief Justice for constituting a larger Bench.

16. In the case of Sundarajas Kanyalal Bhatija (supra), the Apex Court also observed as follows:

‘Judge learned Hand has referred to the tendency of some Judges “who win the game by sweeping all the chessmen off the table”. This is indeed to be deprecated. It is needless to state that the judgment of superior Courts and Tribunals must be written only after deep travail and positive vein. One should never let a decision go until he is absolutely sure it is right. The law must be made clear, certain and consistent. But certitude is not the test of certainty and consistency does not mean that there should be no word of new content. The principle of law may develop side by side with new content but not with inconsistencies. There could be waxing and waning the principle depending upon the pragmatic needs and moral yearnings. Such development of law particularly, is inevitable in our developing country. In Raghubir Singh case, learned Chief Justice Pathak had this to say: (SCC p. 767, para 11).

“Legal compulsions cannot be limited by existing legal propositions, because, there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as “fairness” or “reasonableness” but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted value of present time and place, relevant to the dispensing of justice within the new parameters”.

17. In Cassell & Co. Ltd. (supra), the House of Lords in almost an identical situation observed, “the course taken would have put Judges of first instance in an embarrassing position, as driving them to take sides in an unedifying dispute between Court of Appeal or three members of it (………) and the House of Lords.” Their Lordship further observed, “whatever the merits, chaos would have reigned until the dispute was settled, and, in legal matters, some degree of certainty is at least as valuable a part of justice as perfection.”

18. A Special Bench of this Court in the case of Ahamed Hossen Sekh (supra), observed, “a Single Judge cannot differ from a decision of a larger Bench except when that decision or a judgment relied upon in that decision is specifically overruled by a Full Bench or the Supreme Court. However, if the decision of the larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the Single Bench would be to refer to the matter to the Division Bench.”

19. In our view, His Lordship in the facts and circumstances could have avoided the user of the word “per incuriam” for negating the Division Bench decision which in our view would not create a healthy precedence.

20. Let us now come to the merits of the matter. On perusal of the pleadings it would appear that the entire cause of action arose outside the territorial jurisdiction of this Hon'ble Court. Hence, under sub-clause (2) the application could not be held to be maintainable before this Hon'ble Court based on the cause of action. However, His Lordship was right in applying clauses (1) and (2) together which empowered the High Court to entertain the writ petition in view of the fact that the respondent authority was situated within the State of West Bengal. We are in full agreement that this High Court had territorial jurisdiction to entertain the said writ petition. We, however, wish to approach the problem from a different angle. The entire cause of action arose admittedly in Jharkhand. The Writ Court being a Court of equity having a wide discretion left to it to entertain or not to entertain any writ petition. It might be true that the sept of the respondent in this case is situated within the jurisdiction of this Court. However; considering balance of convenience the said writ petition should have been filed in the Jharkhand High Court where the entire cause of action arose.

21. Mr. Subrata Ganguly, learned Counsel appearing for the respondent writ petitioner contended that in view of clause (2) of Article 226, the writ petitioner had a choice of forum. Since the seat of the respondent authority was at Sanctoria, Burdwan within the State of West Bengal this Court had jurisdiction to entertain the writ application. In support of his contention, he relied on the Apex Court decision in the case of Kusum Ingots and Alloys Ltd. v. Union of India, reported in All India Reporter 2004 SC Page 2321. He also relied on a Single Bench decision of this Court reported in 1991 (1) CLJ Page 203.

22. Mr. Ganguly also cited the following decisions:

1. Eastern Coalfields Ltd. v. Indradeo Yadav & Ors. reported in 2005, Volume 2, Calcutta High Court Notes, Page 542.

2. Ram Brich Muchi v. Coal India Ltd., reported in 2003 (2) West Bengal law Reporter, Page 79.

3. Khagen Bouri v. Coal Indian Ltd. 2000, West Bengal Law Reporter, Page 240.

4. Kalyan Banerjee v. Eastern Coalfields Ltd., reported in 2006, Volume 3, Service Law Reporter Page 759.

5. Unreported decision in the case of Eastern Coalfields Ltd. v. Khagen Bouri dated May 7, 2001.

6. Dinesh Chandra Gahtori v. Chief of Army Staff, reported in 2001 (9) SCC Page 525.

7. Navinchandra N. Majithia v. State of Maharashtra, reported in All India Reporter, 2000, SC Page 2966.

23. The judgments so cited by Mr. Ganguly dealt with the subject controversy and came to conclusion that the writ was maintainable in view of the seat of the respondent being within the jurisdiction of this Hon'ble Court.

24. In this regard we may refer to the problem being faced by the Courts prior to inclusion of clause (2) by 15 Constitutional Amendment in 1963. All writs pertaining to Union of India in absence of clause (2) was maintainable before the Punjab High Court only which was causing immense problem to the citizens of India through out the country to approach Punjab High Court only ventilating their grievance against the Central Government. Considering such hardship the 15 Amendment was brought in by which clause (2) was incorporated. The object to the Constitutional 15 Amendment Act clearly provided “The seat of the Central Government being in New Delhi, Punjab High Court alone had jurisdiction with respect to Central Government. This involved considerable hardship to litigants from distant places. The act, therefore, amends the provision in this respect to that when any relief is sought against some action taken by any Governmental authority or person the High Court within whose jurisdiction the cause of action arises may also have the jurisdiction to issue proper directions, orders or writs” If such object and reasons for bringing the 15 Constitutional Amendment Act is considered this writ petition should not have been entertained by His Lordship even if it was held that the same was maintainable in view of clauses (1) and (2) of Article 226. The Division Bench, in our view, possibly wanted to consider the issue from that angle. Our view is supported by the observation of the Apex Court in Oil and Natural Gas Commission's case.

25. We, therefore, feel that the writ petition should not have been entertained considering the balance of convenience and the writ petitioner should be directed to approach Jharkhand High Court or any other appropriate forum. In these facts and circumstances if we allow entertaining the writ petition this would amount to userping the jurisdiction of the Jharkhand High Court which they had otherwise relating to the collieries belonging to the respondent authorities within its area. It would not create any healthy practice although we might be entitled to do that in view of clauses (1) and (2) read together.

26. The learned Single Judge rejected the other contentions of the respondents. We need not go into that question as we feel that the writ petition should not have been entertained by His Lordship exercising the discretion.

27. The judgment under appeal is quashed and set aside. The respondent No. 1 is granted liberty to approach the Jharkhand High Court or any other appropriate forum on the identical cause of action.

28. We, further, make it clear that since the matter was pending for a substantial period before this Court the respondent authority must not take the plea of delay if Jharkhand High Court or any other appropriate forum is approached within two months from date.

29. Mr. Ganguly also made submissions on merits. We, however, do not incline to deal with those in view of our observations as above.

30. The appeal is disposed of accordingly without any order as to costs.

31. Urgent xerox certified copy would be given to the parties, if applied for.

Tapan Mukherjee, J.: I agree.

Appeal disposed of.

S.K.P