Paradip Port Trust v. Gagan Bihari Prusty & ors.) so also confirming the order dated
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.350 of 2017 M.D., Odisha State Co- Operative Bank Ltd., Bhubaneswar ….... Petitioner -Versus- Prafulla Chandra Patnaik & ors. ....... Opposite Parties For Petitioner : Mr. K.P. Nanda Advocate For Opposite Parties : Mr. R.N. Prusty Advocate ................... CORAM: JUSTICE SANJAY KUMAR MISHRA Date of Hearing : 21.11.2024 &12.12.2024 and _____________________________________________________________ Date of Judgment : 24.12.2024 S.K. MISHRA, J. 1. This writ petition has been preferred by the Petitioner-Bank challenging the order dated 11.11.2016 passed by the Appellate Authority under P.G. Act-cum-Joint Labour Commissioner (O.P. No.3) in P.G. Appeal Case No.3 (JLC)/2016, vide which the Opposite Party No.3 confirmed the order dated 06.12.2014 and 13.03.2015 passed in P.G. Case No.22 of 2012 by the Controlling Authority under the Payment of Gratuity Act, 1972, shortly, “P.G. Act”. 2. The contesting private Opposite Party No.1, who was the applicant in P.G. Case No.22 of 2012, has filed a Counter Affidavit opposing to the said prayer made in the writ petition. 3. Though the confirming order passed by the Appellate Authority has been challenged on various grounds, during hearing, relying on the order dated 01.05.2019 passed by the coordinate Bench in W.P.(C) No.23834 of 2013 (Paradip Port
Legal Reasoning
Trust Vs. Gagan Bihari Prusty & ors.) so also confirming the order dated 18.11.2021 passed by the division Bench in W.A. No.322 of 2019 (Gagan Bihari Prusty Vs. Paradip Port Trust & ors.), learned Counsel for the Petitioner submitted that the Petitioner-Bank would like to challenge the impugned order passed by the Appellate Authority confining it to the rate of interest of 10% awarded by the Controlling Authority, which was also erroneously confirmed by the Appellate Authority. 4. The said submission of the learned Counsel for the Petitioner was also duly recorded vide order dated 21.11.2024. Page 2 of 31 Paragraph Nos.3 & 4 of the said order dated 21.11.2024, being relevant, are reproduced below:- “3. During hearing, learned Counsel for the Petitioner submits, though the Petitioner Bank has challenged the order dated 11.11.2016 passed by the Appellate Authority under the P.G. Act & Joint Labour Commissioner, Bhubaneswar so also order dated 06.12.2014 passed by the Controlling Authority under the P.G. Act-Cum- Assistant Labour Commissioner, Cuttack but he would like to confine the prayer made in the Writ Petition with regard to 10% interest awarded by the Controlling Authority, which was also incorrectly confirmed by the Appellate Authority. 4. Learned Counsel for the Petitioner files photocopy of the order dated 01.05.2019 passed by the coordinate Bench in W.P.(C) No.23834 of 2013 (Paradip Port Trust Vs. Gagan Bihari Prusty and others) and the confirming order passed by the first Division Bench dated 18.11.2021 in W.A. No.322 of 2019 (Gagan Bihari Prusty Vs. Paradip Port Trust and others). The said orders be kept on record”. 5. In response to the said submission made by the learned Counsel for the Petitioner, since the Counsel for the Opposite Party No.1 cited recent judgments of this Court, as has been detailed in the said order dated 21.11.2024, learned Counsel for the Petitioner prayed for an adjournment to examine the said judgments delivered by this Court to have his further say in the said regard. However, on the adjourned date i.e. on 12.12.2024, learned Counsel for the Petitioner, instead of Page 3 of 31 arguing further with regard to the judgments cited by the Counsel for the Opposite Party No.1, produced the photocopy of order dated 21.03.2022 passed by the Supreme Court in SLP(C) No.4468 of 2022 and made a submission to dispose of the writ petition directing the Controlling Authority (O.P.No.2) to release the principal amount deposited by the Petitioner-Bank in favour of the present Opposite Party No.1, giving liberty to the parties to move before this Court to pass appropriate order regarding release of interest after disposal of SLP(C) No.4468 of 2022. 6. Paragraph No.3 of the order dated 12.12.2024, being relevant, is reproduced below:- “3.
Legal Reasoning
Learned Counsel for the Petitioner files photocopy of order dated 21.03.2022 passed by the Supreme Court in SLP(C). 4468 of 2022 so also order dated 24.09.2022 passed by the coordinate Bench in W.P.(C) No. 18632 of 2022 in (M.D., Odisha State Co- operative Bank Ltd, BBSR Vs. Appellate Authority under Payment of Gratuity Act, BBSR & ors.) and submits, the writ petition be disposed of directing the Controlling Authority (O.P. No.2) under Payment of Gratuity Act to release the principal amount deposited by the Bank before it. So far as interest is concerned, since the issue regarding rate of interest is sub-judice before the Supreme Court in SLP(C).4468 of 2022 in another case, which is arising out of order dated 18.11.2021 passed in W.A. No.322 of 2019, liberty be given to the parties to move before this Court to pass appropriate order regarding release of the interest, as will be Page 4 of 31 decided by the Supreme Court No.4468 of 2022”. in SLP(C) 7. In response to such submission made by the learned Counsel for the Petitioner-Bank, learned Counsel for the Opposite Party No.1 submitted that the coordinate Bench in W.P.(C) No.23834 of 2013 passed an incorrect order that the concerned employee is entitled to interest at the rate of 6% applying the provisions of Interest Act, even though there is a specific provision under sub section (3A) of section 7 of the P.G. Act to pay interest and the Central Government, exercising its power conferred under sub section (3A) of section 7 of the P.G. Act, has notified on 01.10.1987 to pay interest @ 10%, which is still in vogue. 8. Learned Counsel for the Opposite Party No.1 further submitted that the said erroneous order was also incorrectly confirmed by the division Bench vide order dated 18.11.2021 in W.A. No.322 of 2019. Hence, the Supreme Court, taking note of the notification made by the Ministry of Law dated 01.10.1987, has rightly issued notice to the employer in the said SLP(C) No.4468 of 2022. Page 5 of 31 9. Learned Counsel for the Opposite Party No.1 further submitted that since the statute under the P.G. Act provides payment of interest and the judgment passed by this Court so also the Supreme Court on the said issue is very clear, it would not be appropriate and justified to keep the said point open with regard to rate of interest payable to the Opposite Party No.1 till disposal of the said SLP. 10. So far as the order dated 01.05.2019 passed by the coordinate Bench in W.P.(C) No.23834 of 2013, the concluding para of the said order, being relevant, is extracted below:- “Considering the contention raised by learned counsel for the parties, it appears that the factual matrix of the case which has been discussed above, are not disputed and, as such, the delay neither attributable to the petitioner-employer nor to the employee. But, question is if the benefit of Payment of Gratuity Act is made applicable to the employee by virtue of the order passed by this Court while resolving dispute with regard to applicability of Payment of Gratuity Act and accordingly the same implemented by paying the amount by the employer, namely, the petitioner herein, with regard to delayed payment so far as interest is concerned, the employer is obliged under law to pay the same. Therefore, if the employer is obliged under law to pay the interest for delayed payment, the question of rate of interest would be calculated for payment interest amount. Therefore, applying the provisions of Interest Act, this Court is of the considered view, instead of 10% interest on the delayed payment on gratuity amount, the such of Page 6 of 31 petitioner is directed to pay the interest at the rate of 6% to its employees. Accordingly, the order so passed by the controlling authority confirmed by the appellate authority dismissing the appeal is modified to the extent the opposite party- employee is entitled to get the interest at the rate of 6% on the gratuity amount already received. It is also clarified that the gratuity amount of some employee are not paid by the employer for other reasons, the same can also be released after adjusting the amount due to the petitioner along with the interest as stated above in accordance with law”. (Emphasis Supplied) 11. The said order passed by the coordinate Bench, being challenged by the employee concerned in W.A. No.322 of 2019, the division Bench also incorrectly confirmed the said order passed by the coordinate Bench vide order dated 18.11.2021. The said order, being relevant, is extracted below:- “1. that arises The short point for consideration in the present appeal is whether the learned Single Judge was justified in directing interest on the delayed payment of gratuity at 6% per annum instead of 10% per annum as claimed by the Petitioner? It is seen that there is no provision 2. as such in the Payment of Gratuity Act prescribing any mandatory minimum rate of interest on delayed payment. In that view of the matter, the learned Single Judge has, after examining the provisions of the Interest Act, directed that instead of interest on delayed payment of 10% gratuity amount as claimed by the Petitioner, it would be appropriate in the interest of justice, if interest for the delayed period is at the rate of 6% per annum. Page 7 of 31 3. No error has been committed by the learned Single Judge that warrants interference by this Court. 4.
Decision
Accordingly, the appeal is dismissed.” (Emphasis Supplied) 12. The said order passed by the division Bench, being challenged by the employee concerned in SLP(C) No.4468 of 2022, the Supreme Court was inclined to issue notice to the employer vide order dated 21.03.2022. Paragraph 1 of the said order, being relevant, is extracted below:- “1. Ms Madhusmita Bora, counsel appearing on behalf of the petitioner submits that: (i) Following the amendment to Section 7 of the Payment of Gratuity Act 1972 by the insertion of sub-section 3(a), simple interest became liable to be paid for the delay in disbursing gratuity: (ii) A notification has been issued by the Union Ministry of Labour on 1 October 1987 (Annexure P-1) by which the rate of interest has been prescribed at 10% per annum; and (iii) Hence, the Single Judge erred in reducing the interest payable to the petitioner on the delayed payment of gratuity from 10% to 6% per annum”. (Emphasis Supplied) Page 8 of 31 13. Admittedly, in view of the provision enshrined under subsection 3(A) of section 7 of the P.G. Act, 1972, followed by notification made by the Central Government dated 01.10.1987, the rate of interest payable to an employee, in the case of default in payment of gratuity, is to be 10% from the date the gratuity becomes payable till the date of actual payment. 14. Much prior to the said judgment of this Court, the coordinate Bench in Mohan Dakua & ors. Vs. Steel Authority of India Ltd & ors., reported in 2015 (II) ILR-CUT 178 : 2015 (I) OLR 386 : 120 (2015) CLT 1096 held as follows:- “5. Reading of Sub-section (3) of Section 7 gives a clear indication for release of the gratuity within a period of thirty days from the date it becomes payable to the person to whom the gratuity is payable. Similarly in Sub-section (3-A) of Section 7, there is a statutory mandate that in case the gratuity is not released within the time framed, the employer is required to pay the simple interest at such rate not exceeding the rate notified in the notification by the Central Government from time to time for repayment of long term deposit as the Government may be certified by such notification. From the pleadings of the parties, it 6. appears that there is no latches on the part of the petitioners in the matter of release of the gratuity. I find force in the submissions of is not only the petitioners which supported by the statutory provisions as at Sub-section (3), (3-A) of Section 7 but also covered by a decision decided by in case of H. Hon'ble Apex Court Gangahanume Gowda Versus Karnataka Industries Corporation Ltd. By Agro Page 9 of 31 to deciding similar matter, the Hon'ble Apex Court was pleased to grant interest for the delayed period @ 10% as available in para-9 and 10 of the said decision. The petitioner's case is squarely covered under the above decision of the Hon'ble Apex Court. Further, the petitioners have also 7. referred the statutory provisions as recorded to hereinabove and they are entitled to interest for delayed payment of Gratuity under the statute also. Under the circumstances, I allow the 8. writ petition directing the opposite party (S.A.I.L.) to calculate the interest @ 10% to be paid to each of petitioners independently. Calculation as directed be made within a period of four weeks from the date of communication of the order and payment as calculated be released in favour of each of the petitioner within a period of two weeks thereafter”. (Emphasis Supplied) 15. The coordinate Bench, on who’s order the learned Counsel for the Petitioner intended to rely to oppose the grant of 10% interest on the gratuity amount, in the General Manager (P & EEL), Mahanadi Coalfields Ltd. Vs. Asim Kumar Chatterjee reported in 122 (2016) CLT 260: 2016 LabIC 2302 : 2016 (149) FLR 497: 2016 (II) CLR 212 upheld the orders passed by the Controlling Authority as well as confirmed order passed by the Appellate Authority for payment of gratuity along with 10% interest per annum. Paragraph Nos.1 and 8 to 13 of the said judgment, being relevant, are extracted below:- Page 10 of 31 The General Manager “1. (P/EEL), Mohanadi Coal Fields Limited, Burla, Sambalpur, being the petitioner, has filed this petition seeking to quash the order dated 23.04.2015 passed by the Controlling Authority under the Payment of Gratuity Act, 1972 and Regional Labour Commission in Application No. (Central), Rourkela 36(2)/2014-RKL-R vide Annexure-8 by which direction has been given to the petitioner to pay the gratuity amount of Rs. 10,00,000/- along with interest @ 10% per annum calculated at Rs. 3,22,192/- within a period of 30 days from the date of receipt of the order. In Mohan Dakua (Supra) referred 8. to by the learned counsel for opposite party No. 1, this Court has held that payment of gratuity is to be released within a period of 30 days from the date it becomes payable and as such, for the delay in payment of gratuity since no latches having been found on the part of the employer and the employer having not obtained prior permission the controlling authority for such delayed payment, it is liable to pay interest @ 10%. 9. In H. Gangahanume Gowda(supra), the apex Court has held that in view of the clear mandate under the provisions of Section 7 to employer for payment of gratuity within time and to pay interest on the delayed payment of gratuity and there is also provision to recover the amount of gratuity with compounded interest in case the amount of gratuity payable was not paid by the employer in terms of Section-8 of the Act, since the employer did not satisfy the mandatory requirements of the proviso to Section 7(3- A), no discretion was left to deny interest to the employee on belated payment of gratuity and directed to pay interest @10%. in Kerala State Cashew 10. (supra) the apex Court has held that in case the employer has obtained permission in writing from the Controlling Authority for Similarly from Page 11 of 31 delayed payment in that case no interest shall be payable to the employee. In the present case such permission having not been obtained, the employer is liable to pay interest on the gratuity amount. 11. In Y.K. Singla (supra) the apex Court has held that Sub-section (3-A) of section 7 of the Act, 1972 is a most relevant provision for determination of interest to the employee and perusal of Sub-section (3-A) of section 7 of the Act, 1972 leaves no room for any doubt that in case gratuity is not released to an employee within 30 days from the date it becomes payable under Sub-section (3) of Section 7, the employee would be entitled to simple interest at such rate not exceeding the rate notified by the Central Government from time to time for repayment of the loans, as Government may, by notification specify. In D.D. Tewari (D) Thr. LRs. (supra) the 12. apex Court has held that if pensionary benefits on gratuity amount is erroneously withheld by the employer, the employee is entitled to interest from the date of entitlement till the date of actual payment. Similar view has also been taken in Rajnagar Textile Mills(supra). 13. For the forgoing reasons and keeping in view the judgments cited above, it is no more res integra that the opposite party No. 1 is entitled to get interest on the gratuity amount payable to him and therefore, the impugned order passed in Annexure-8 dated 23.04.2015 by opposite party No. 2 is wholly and fully justified”. term long (Emphasis Supplied) 16. In a recent judgment in Manager Director, Odisha Small Industries Corporation Ltd. Vs. Abhay Kumar Samantray reported in 2022 (III) ILR-CUT 639, this Court held as follows:- Page 12 of 31 “20. So far as awarding 10% simple interest on the determined amount, it may not be out of place to mention that the Central Government, in exercise of the powers conferred by Sub- Section (3-A) of Section 7 of the P.G. Act, 1972, vide Notification dated 01.10.1987, notified as follows: "TO BE PUBLISHED IN PART II, SECTION 3, SUB-SECTION (II) OF THE GAZETTE OF INDIA- EXTRAORINARY) PUBLISED ON 01.10.1987 New Delhi, the 1st October, 87 NOTIFICATION S.O. 874(E), In exercise of the powers conferred by sub-section (3A) of section 7 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central hereby specifies ten percent per annum as the rate of simple interest payable for the time being by the employer to his employee in cases where the gratuity is not paid within the specified period. 2. This notification shall come into force on the date of its publication in the Official Gazette." (No. S-70012/6/87.SS-II) (A.K. Bhattarai) Under Secretary" is still 21. Admittedly, the said Notification dated 01.10.1987 force not being superseded by any fresh Notification varying the rate of interest as was notified by the Government of India on 01.10.1987. in under 22. Hence, this Court is of the view that the P.G. Act- Controlling Authority Labour Commissioner, Cum Divisional Cuttack, was into justified consideration the total period of service of the Opposite Party from the date of his initial engagement (14.11.1991) till the date of his superannuation (31.03.2018), so also award 10% simple interest on the awarded amount take to Page 13 of 31 for the delayed period, so also ordering to pay further simple interest @ 10% per annum till the the Petitioner Corporation fails to deposit the said ordered amount within 30 days from the date of pronouncement of the judgment”. payment made, is if 17. The Supreme Court in H. Gangahanume Gowda Vs. Kanataka Agro Industries Corpn. Ltd reported in (2003)3 SCC 40: AIR 2003 SC 1526, held as follows:- “7. It is evident from Section 7(2) that as soon as gratuity becomes payable, the employer, whether any application has been made or not, is obliged to determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity. Under Section 7(3), the employer shall arrange to pay the amount of gratuity within 30 days from the date it becomes payable. Under sub- section (3-A) of Section 7, if the amount of gratuity is not paid by the employer within the period specified in sub-section (3), he shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate not exceeding the rate notified by the Central Government from time to time for repayment of long- term deposits; provided interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on that ground. From the provisions made in Section 7, a clear command can be seen mandating the employer to pay the gratuity within the specified time and to pay interest on the delayed payment of gratuity. No discretion is available to exempt or relieve the employer from payment of gratuity with or without interest as the case may be. However, that no such Page 14 of 31 that from in writing under the proviso to Section 7(3-A), no interest shall be payable if delay in payment of gratuity is due to the fault of the employee and the employer has further condition obtained permission the controlling authority for the delayed payment on that ground. Under Section 8, provision is made for recovery of gratuity payable under the Act, if not paid by the employer within the prescribed time. The Collector shall recover the amount of gratuity with compound interest thereon as arrears of land revenue and pay the same to the person entitled. A penal provision is also made in Section 9 for non- payment of gratuity. Payment of gratuity with or without interest, as the case may be, does not lie in the domain of discretion but it is a statutory benefits in a social beneficial expressly given legislation cannot be ordinarily denied. Employees on retirement have valuable rights to get gratuity and any culpable delay in payment of gratuity must be visited with the penalty of payment of interest was the view taken in State of Kerala v. M. Padmanabhan Nair. Earlier there was no provision for payment of interest on the delayed payment of gratuity. Sub-section (3-A) was added to Section 7 by an amendment, which came into force with effect from 1- 10-1987. In the case of Charan Singh v. Birla Textiles the this aspect was noticed following words. compulsion. Specific in "4. There was no provision in the Act for payment of interest when the same was quantified by the controlling authority and before the Collector was approached for its realization. In fact, it is on the acceptance of the position that there was a lacuna in the law that Act 22 of 1987 brought about the incorporation of sub-section (3-A) in Section has 7. prospective application”. provision That 9. It is clear from what is extracted above from the order of the learned Single Judge that interest on delayed payment of gratuity was denied only on the ground that there was Page 15 of 31 doubt whether the appellant was entitled to gratuity, cash equivalent to leave etc., in view of divergent opinion of the courts during the learned Single pendency of enquiry. The Judge having held that the appellant was entitled to payment of gratuity was not right in denying the interest on the delayed payment of gratuity having due regard to Section 7(3-A) of the Act. It was not the case of the respondent that the delay in the payment of gratuity was due to the fault of the employee and that it had obtained permission in writing from the controlling authority for the delayed payment on that ground. As noticed above, there is a clear mandate in the provisions of Section 7 to the employer for payment of gratuity within time and to pay interest on the delayed payment of gratuity. There is also provision to recover the amount of gratuity with compound interest in case the amount of gratuity payable was not paid by the employer in terms of Section 8 of the Act. Since the employer did not satisfy the mandatory requirements of the proviso to Section 7(3-A), no discretion was left to deny the interest to the appellant on belated payment of gratuity. Unfortunately, the Division Bench of the High Court, having found that the appellant was entitled to interest, declined to interfere with the order of the learned Single Judge as regards the claim of interest on delayed payment of gratuity only on the ground that the discretion exercised by the learned Single Judge could not be said to be arbitrary. In the first place in the light of what is stated above, the learned Single Judge could not refuse the grant of interest exercising discretion as against the mandatory provisions contained in Section 7 of the Act. The Division Bench, in our opinion, committed an error in assuming that the learned Single Judge could exercise the discretion in the matter of awarding interest and that such a discretion exercised was not arbitrary”. 10. In the light of the facts stated and for the reasons aforementioned, the impugned order cannot be sustained. Consequently, it is set aside. The respondent is directed to Page 16 of 31 to which the appellant pay interest @ 10% on the amount of gratuity is entitled from the date it became payable till the date of payment of the gratuity amount. allowed accordingly with cost quantified at Rs. 10,000/-.” appeal The is (Emphasis Supplied) 18. The Supreme Court also in Director (Thrisul Project) DRDO, Andhra Pradesh Vs. P.B. Varalakshmi and Others reported in (2015) 15 SCC 398 held as follows:- “2. The learned Additional Solicitor General submits that in terms of the Rules the amount can be disbursed only to the nominee, who is the widow. Now that the inter se dispute between the wife and the daughter has been settled, we dispose of this appeal with the direction to the appellant to disburse the eligible benefits to the widow nominee who shall distribute the compromise between her and her daughter. The dues shall be disbursed with interest @ 10% which is the statutory rate fixed under the Payment of Gratuity Act, 1972”. the benefits terms of in (Emphasis Supplied) The Supreme Court in State of U.P. & ors. Vs. Synthetic & Chemicals Ltd. & ors., reported in (1991)4 SCC 139 held as follows:- “46. But the problem has arisen due to the conclusion in the case of Synthetic and Chemicals (supra). The question was if the State legislature could levy vend fee or excise duty on industrial alcohol. The Bench answered the question in the negative as Page 17 of 31 the State for human industrial alcohol being unfit consumption legislation was incompetent to levy any duty of excise either under Entry 51 or Entry 8 of List II of the VIIth Schedule. While doing so the Bench recorded the conclusion extracted earlier. It was not preceded by any discussion. No reason or rationale could be found in the order. This gives rise to an important question if the conclusion is law declared Under Article 141 of the Constitution or it is per incurium and is liable to be ignored: 'Incuria' literally means 'carelessness'. In practice per incurium appears to mean per ignoratium.' English Courts have developed this principle in relaxation of the Rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (1944 IKB 718 Young v. Bristol Aeroplane Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. v. Rajdewan Dubey, Jaisri Sahu In MANU/SC/0371/1961 : : 1961:INSC:198 [1962] 2 SCR 558 this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury Laws of England incorprating one of the exceptions when the decision of an Appellate Court is not binding. 47. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the Rule of precedents. It has been explained as Rule of sub silentio. A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular' point of law involved in the decision is not perceived by the Court or present to its mind' (Salmond 12th Page 18 of 31 Edition). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd.,[1941] IKB 675 the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the Rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur, MANU/SC/0323/1988 : 1988:INSC:267 : [1989] 1 SCC 101. The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perperated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decedendi. In Shama Rao v. State of Pondicherry, AIR 1967 SC 1680 it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot law or be deemed to be declaration of authority of a general nature binding as a precedent. Restraint or overruling for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law”. in dissenting is (Emphasis Supplied) The Supreme Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital & anr., reported in (2010)5 SCC 513 held as follows:- “54. When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision Page 19 of 31 on the point such decisions are rendered per incuriam. This concept of per incuriam has been explained in many decisions of this (as his Court. Sabyasachi Mukharji, J. Lordship then was) speaking for the majority in A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] explained the concept in the following words : (SCC p. 652, para 42) of “42. … ‘Per incuriam’ are those decisions given in ignorance or forgetfulness some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases 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.” Subsequently also in the Constitution Bench in Punjab Land judgment of Development Corpn. Ltd. v. Labour Court [(1990) 3 SCC 682 : 1991 SCC (L&S) 71] , similar views were expressed in para 40 at p. 705 of the report”. this Court and Reclamation (Emphasis Supplied) The Supreme Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra & ors. reported in (2011) 1 SCC 694 held as follows:- “139. Now we deem it imperative to examine the issue of per incuriam raised by the learned Counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is Page 20 of 31 Article interpreting rendered, 'in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this Court the while Constitution which embodies the doctrine of precedents as a matter of law. ...In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under: 141of A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd. 1944 KB 718 : (1944) 2 All ER 293 . In Huddersfield Police Authority v. Watson 1947 KB 842: (1947) 2 All ER 193.; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. 140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam. 141. This Court in Government of A.P. and Anr. v. B. Satyanarayana Rao (dead) by LRs. and Ors. MANU/SC/0275/2000 : (2000) 4 SCC 262 observed as under: The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue”. the decision in (Emphasis Supplied) Page 21 of 31 The Supreme Court in Madhya Pradesh Rural Road Development Authority Vs. L.G. Chaudhary Engineers & Contractors, reported in (2012) 3 SCC 495 held as follows:- “26. It is clear, therefore, that in view of the aforesaid finding of a coordinate Bench of this Court on the distinct features of an Arbitral Tribunal under the said M.P. Act in Anshuman Shukla case [(2008) 7 SCC 487] the provisions of the M.P. Act are saved under Section 2(4) of the AC Act, 1996. This Court while rendering the decision in Va Tech [(2011) 13 SCC 261] has not either noticed the previous decision of the coordinate Bench of this Court in Anshuman Shukla [(2008) 7 SCC 487] or the provisions of Section 2(4) of the AC Act, 1996. Therefore, we are constrained to hold that the decision of this Court in Va Tech [(2011) 13 SCC 261] was rendered per incuriam. 27. This was the only point argued before us by the learned counsel for the appellant. 28. The principle of per incuriam has been very succinctly formulated by the Court of in Young v. Bristol Aeroplane Co. Appeal Ltd. [1944 KB 718 (CA)] Lord Greene, Master of Rolls formulated the principles on the basis of which a decision can be said to have been rendered “per incuriam”. The principles are: (KB p. 729) “… Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a Page 22 of 31 decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam.” of in by the House 29. The decision in Young was subsequently approved Lords in Young v. Bristol Aeroplane Co. Ltd. Lord Viscount Simon the House of Lords expressed His Lordship's agreement with the views expressed by Lord Greene, the Master of Rolls in the Court of Appeal on the principle of per incuriam (see the speech of Lord Viscount Simon in Bristol Aeroplane Co. Ltd. case 30. Those principles have been followed by the Constitution Bench of this Court in Bengal Immunity Co. Ltd. v. State of Bihar (see the discussion in SCR at pp. 622 and 623 of the Report). 31. The same principle has been reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. v. Wakeling .The principle has been stated as follows: “… As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases 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.” incuriam” in practice means of U.P. v. Synthetics 32. In State and Chemicals Ltd. [(1991) 4 SCC 139] this Court held (SCC p. 162, para 40) that the doctrine of “per “per ignoratium” and noted that the English courts have developed this principle in relaxation of the rule of stare decisis and referred to the decision in Bristol Aeroplane Co. Ltd. [1946 AC 163 (HL)] The learned Judges also made it the same principle has been clear approved and adopted by this Court while interpreting Article 141 of the Constitution that Page 23 of 31 Ltd. and Chemicals (see Synthetics case [(1991) 4 SCC 139] , SCC para 41). 33. In MCD v. Gurnam Kaur [(1989) 1 SCC three-Judge Bench of this Court 101] a explained this principle of per incuriam very elaborately in SCC para 11 at p. 110 of the Report and in explaining the principle of per incuriam the learned Judges held: “11. … A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute.” 34. In para 12 the learned Judges observed as follows: (Gurnam Kaur case [(1989) 1 SCC 101] , SCC p. 111) “12. … One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority.” (Emphasis Supplied) The Supreme Court in Hyder Consulting (UK) Ltd. Vs. Governor, State of Orissa, reported in (2015) 2 SCC 189 held as follows:- incuriam". The literally “13. Before I consider the correctness of the it would be aforementioned decisions, necessary to elaborate upon the concept of latin expression per "per 'through incuriam inadvertence'. A decision can be said to be given per incuriam when the Court of record has acted in ignorance of any its own, or a previous decision of subordinate court has acted in ignorance of a decision of the Court of record. As regards the judgments of this Court rendered means Page 24 of 31 per incuriam, it cannot be said that this Court has "declared the law" on a given subject matter, if the relevant law was not duly considered by this Court in its decision. In this regard, I refer to the case of State of U.P. v. Synthetics Ltd. MANU/SC/0616/1991 : (1991) 4 SCC 139, wherein Justice R.M. Sahai, in his concurring opinion stated as follows: Chemicals and practice literally means 'Incuria' 40. per 'carelessness'. In to mean per incuriam appears ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'.... law' in 14. Therefore, I am of the considered view that a prior decision of this Court on identical facts and law binds the Court on the same points of law in a later case. In exceptional circumstances, where owing to 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. The said principle was also noticed in the case of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (Emphasis Supplied) 19. Admittedly, there is a specific provision under the P.G. Act, 1972, so far as payment of interest is concerned. That apart, the coordinate Bench, while passing the order dated 01.05.2019 in W.P.(C) No.23834 of 2013, did not take note of the earlier judgment of this Court in Mohan Dakua (supra) so Page 25 of 31 also its own judgment in the General Manager (P & EEL), Mahanadi Coalfield Ltd. (Supra) and the judgments of the Supreme Court in H. Gangahanume Gowda (supra) and Director (Thrisul Project) (supra). All the aforementioned judgments are prior to the order dated 01.05.2019 passed by the coordinate Bench in W.P.(C) No.23834 of 2013. 20. Admittedly, the coordinate Bench has passed the order in Paradip Port Trust (supra) in ignorance of a previous decision of its own in General Manager (P & EEL), Mahanadi Coalfield Ltd. (Supra) so also in Mohan Dakua (supra) passed by another coordinate Bench of this Court. Perhaps such an incorrect order was passed by the coordinate Bench as because the parties to the said lis failed to bring to the notice of the learned coordinate Bench regarding the legal provisions under the P.G. Act, 1972, notification made by the Central Government in terms of Section 7 (3-A) of the P.G. Act, 1972 so also earlier judgments of this Court and Supreme Court on the said issue regarding rate of interest. For the self same reason, the division Bench also incorrectly confirmed the said erroneous order passed in W.P.(C) No.23834 of 2013, in W.A. No.322 of 2019. Page 26 of 31 21. Admittedly while issuing notice in SLP(C) No.4468 of 2022, the Supreme Court, taking note of the said provisions under sub-section 3-A of section 7 of the P.G. Act, 1972 so also notification made by the Central Government in the said regard, consciously has issued notice to the employer. 22. This Court is of the view that unless and until leave is granted by the Supreme Court, mere issuance of notice in a SLP cannot be held that the issue regarding rate of interest under the P.G. Act is sub-judice before the Supreme Court, more particularly, when such an issue has already been dealt with and decided by the Supreme Court in H. Gangahanume Gowda (supra) and Director (Thrisul Project) (supra) much prior to issuing notice to the employer in SLP(C) No.4468 of 2022. 23. Law is well settled that any judgment or order passed contrary to the statute is a nullity. That apart, law is also well settled that any judgment passed without taking note of the earlier judgment of the same Court so also Supreme Court is per inqurium. 24. In Director of Settlements, A.P. Vs. M.R. Apparao, (2002) 4 SCC 638, the Supreme Court held as follows:- Page 27 of 31 to the the that far as first question “7. So is concerned, Article 141 of the Constitution unequivocally law indicates declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court interpret alegislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has “declared law” it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An “obiter dictum” as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by far as the Court constitutional matters are concerned, it is a practice of to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground certain aspects were not considered or the relevant provisions were not the Court brought the notice (see Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur [(1970) 2 SCC in a given case. So the Court not that of to Page 28 of 31 267 : AIR 1970 SC 1002] and AIR 1973 SC 794 [ (sic)] ). When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See Narinder Singh v. Surjit Singh [(1984) 2 SCC 402] and Kausalya Devi Bogra v. Land Acquisition Officer [(1984) 2 SCC 324] .) We have to answer the first question bearing in mind the aforesaid guiding principles. We may refer to some of the decisions cited by Mr Rao in elaborating his arguments contending that the judgment of this Court dated 6-2-1986 [State of A.P. v. Rajah of Venkatagiri, (2002) 4 SCC 660] cannot be held to be a law declared by the Court within the ambit of Article 141 of the Constitution. Mr Rao relied upon the judgment of this Court in the case of M.S.M. Sharma v. Sri Krishna Sinha [AIR 1959 SC 395 : 1959 Supp (1) SCR 806] wherein the power and privilege of the State Legislature and the fundamental right of freedom of speech and expression including the freedom of the press was the subject - matter of consideration. the aforesaid judgment it has been observed by the Court that in Gunupati Keshavram Reddy v. Nafisul Hasan [(1952) 1 SCC 343 : AIR 1954 SC 536 : 1954 Cri LJ 1704] relied upon by the counsel for the petitioner which entirely proceeded on a concession of the counsel cannot be regarded as a considered opinion on the subject. There is no dispute with the aforesaid proposition of law”. the decision In (Emphasis Supplied) 25. This Court is also of the view that order dated 01.05.2019 passed in W.P.(C) No. 23834 of 2013, so also the confirmed order passed by the division Bench in W.A. No. 322 of Page 29 of 31 2019, are hit by the principle of per incuriam as the Bench has passed such an order contrary to the statute so also without taking note of its own judgment in Mahanadi Coal fields Ltd. (supra) so also the earlier judgment passed by this Court in Mohan Dakua (Supra) and judgment passed by the Supreme Court in H. Gangahanume Gowda (Supra) so also in Director (Trisul Project) DRDO (Supra) pertaining to the said issue regarding interest payable to an employee under the P.G. Act, 1972. 26. Following the aforesaid principles, this Court is constrained to hold that the order passed by the coordinate Bench so also the confirming order passed by the division Bench, having been rendered per incurium, cannot be accepted as a precedent to decide the controversy regarding the rate of interest in this case and wait till disposal of SLP(C) No.4468 of 2022. Hence, this Court is of the view that the oral prayer made by the learned Counsel for the Petitioner to dispose of the Writ Petition directing the Controlling Authority to release the principal amount giving liberty to the parties to move before this Court for release of interest after disposal of SLP(C) No. 4468 of 2022 needs no consideration. Page 30 of 31 27. Accordingly, the writ petition stands dismissed. No order as to cost. 28. In view of the dismissal of the Writ Petition, the Assistant Labour Commissioner, Cuttack, who is the Controlling Authority under the P.G. Act, 1972, before whom the Petitioner- Bank has deposited the entire awarded amount in terms of the order passed in P.G. Case No. 22 of 2012, shall do well to disburse the said amount with accrued interest, if any, in favour of the Opposite Party No.1 within a period of two weeks’ from the date of production of the certified copy of this judgment. …….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack. Dated, 24th December, 2024/ Banita Signature Not Verified Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: SR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 03-Jan-2025 18:09:09 Page 31 of 31