Per-incuriam
Since publication by Bangladesh Bank is immune from any legal challenge through any suit or proceedings under Article 41 of Bangladesh Bank Order, 1972, the Bench of the High Court Division in Morshed Khan's case has clearly ignored the law of the land and, as such, the decision, to the extent it held that the suits concerned were maintainable, is a decision per-incuriam......(4.45) [73 DLR 554]
Paragraph 24 of 71 DLR (AD) 319 is a per incuriam decision:
We are of the view that the part of the judgment reported in 71 DLR (AD) 319 particularly in paragraph 24 regarding maintainability of the writ petition was passed without considering the latest provision of law and, as such, the part of the said judgment regarding maintainability of the writ petition filed by a retired public servant is a per incuriam decision. (Para 12)
Any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam:
Per incuriam, literally translated as “through lack of care” is a device within the common law system of judicial precedent. A finding of per incuriam means that a previous Court judgment has failed to pay attention to relevant statutory provision or precedents. The significance of a judgment having been decided per incuriam is that it need not be followed by any equivalent Court. Ordinarily, the rationes of a judgment is binding upon all sub-ordinate Courts in similar cases. However, any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam. (Para 13)
Article 111 of the Constitution:
If any judgment pronounced by the Appellate Division, as per provision of Article 111 of the Constitution the High Court Division is not competent to say the judgment is per incuriam. Primarily the High Court Division must follow the judgment in toto, however, in such a situation the High Court Division may draw attention of the Hon’ble Chief Justice regarding the matter. On the other hand even if any judgment is pronounced by
the High Court Division, the subordinate Courts have no jurisdiction to raise any question regarding the legality of the judgment on the point of per imcuriam. Parties may get remedy on preferring appeal. (Para 24) 18 SCOB (2023) AD 11
Administrative Tribunal Act, 1980
(VII of 1981)
Section 4(3)-When the judgment of the case reported in 31 DLR (AD) 256 was pronounced at that time sub-section 3 of section 4 of Act, had no existence, but when the judgment was pronounced in the case reported in 71 DLR (AD) 319 the provision of sub-section 3 of section 4 of the Act came into force and found place in the statute book. The part of the judgment reported in 71 DLR (AD) 319 particularly in paragraph 24 regarding maintainability of the writ petition was passed without considering the latest provision of law and, as such, the part of the judgment regarding maintainability of the writ petition filed by a retired public servant is a per incuriam decision. Secretary, Posts and Tele-communi- cations Division, Ministry of Posts vs Shudangshu Shekhar Bhadra (Civil) 74 DLR (AD).
Article 111-Binding effect of Supreme Court Judgment-If any judgment pronounced by the Appellate Division, the High Court Division is not competent to say the judgment is per incuriam. Primarily the High Court Division mist follow the judgment in toto, however, in such a situation the High Court Division may draw attention of the Hon'ble Chief Justice regarding the matter. Even if any judgment is pronounced by the High Court Division, the subordinate Courts have no jurisdiction to raise any question regarding the legality of the judgment on the point of per incuriam. Secretary, Posts and Tele communications Division, Ministry of Posts vs Shudangshu Shekhar Bhadra (Civil) 74 DLR (AD) 222
Article 111-Per incuriam-A decision can be said generally to be given per incuriam when the court had acted in ignorance of a previous decision of its own or when the High Court Division had acted in ignorance of a decision of the Appellate Division. Nothing could be shown that the Appellate Division in deciding the said case had overlooked any of its earlier decision on the point. So, it was not open to the High Court Division to describe it as one given "per incurian". Even if it were so, it could not have been ignored by the High Court Division in view of Article 111 of the Constitution which embodies, as a rule of law, the doctrine of precedent. Secretary, Posts and Tele-communi cations Division, Ministry of Posts vs Shudangshu Shekhar Bhadra (Civil) 74 DLR (AD) 222
Per incuriam-When courts ignore law and proceed to pass judgment, the decision falls under the spectrum of per incuriam and does not necessarily need to be followed. Secretary, Posts and Tele-communications Division, Ministry of Posts vs Shudangshu Shekhar Bhadra (Civil) 74 DLR (AD) 22
Per incuriam-The ratio decided in the case reported in 71 DLR (AD) 319 in respect of maintainability of the writ petition by a retired public servant is not applicable in this case as the said judgment is pronounced per incuriam Secretary, Posts and Tele-communications Division, Ministry of Posts vs Shudangshu Shekhar Bhadra (Civil) 74 DLR (AD) 222
Per incuriam-Since the judgment reported in 71 DLR (AD) 319 was delivered without considering the latest statutory provision this judgment is a judgment per incuriam. Since it has come to the knowledge of this Court that the previous judgment reported in 71 DLR (AD) 319 was delivered due to ignorance of the statutory provision of section 4(3) of the Administrative Tribunal Act, 1980. This Court should address the matter in accordance with law, It is the duty of this Court to make it very clear that if any judgment passed by the Court of co-equal jurisdiction has been passed on carelessness, or due to non . consideration of any statutory provision or previous judgment it must rectify the error. Secretary, Posts and Tele-communications Division, Ministry of Posts vs Shudangshu Shekhar Bhadra (Civil) 74 DLR (AD) 222
