M/s Jai Surgicals Limited v. Kripa Shanker Son Of Jagannath Prasad

: Ms. Pranjal Mundhra, Adv. for Mr. Veyankatesh Garg, Adv. For Respondent(s) : Mr. Jitendra Kumar Sharma, Adv. HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI Order Reportable 29/07/2025

This is an appeal assailing the order dated 07.05.2025 passed by learned Single Judge whereby interim directions have been issued to grant back wages for the interregnum period on the date the writ petition was filed under Section 17-B of the Industrial Disputes Act, 1947(hereinafter referred as ‘Act’).

Learned counsel for the appellant submits that reply to the application under Section 17-B of the Act was not filed and opportunity ought to have been granted to file reply to bring out the averments that the affidavit filed was incorrect and he was actually working elsewhere during the period of pendency of the writ petition. Learned counsel also submits that the order of [2025:RJ-JP:28660-DB] (2 of 9) [SAW-607/2025] granting wages during the interregnum period should be from the date of application and not from the date of filing of the writ petition.

Learned counsel for the appellant relied upon the judgment passed by the High Court of Judicature at Madras, The Managing Director, Metropolitan Transport Corporation(Chennai) Ltd. Vs. B. Balchandar & Anr., W.A. No.1500 of 2022 dated

13.07.2022 and Uttaranchal Forest Development Corporation Vs. K.B. Singh: (2005) 11 SCC 449 to submit that nobody had been granted the entitlement of such wages from the respective dates of filing affidavits by each of them in compliance of Section 17-B of the Act.

Per contra, learned counsel appearing for the respondent has relied upon the judgment passed by Supreme Court in Dena Bank vs Ghanshyam: (2001) 5 SCC 169.

Learned counsel for the respondent submits that the judgment passed in Dena Bank vs Ghanshyam(supra) was not considered by the Court either in Uttaranchal Forest Development Corporation(supra) or by the Division Bench of High Court of Madras in The Managing Director, Metropolitan Transport Corporation(Chennai) Ltd. (supra). The law of precedents and the law as to how the Courts are required to follow the law which has already been settled earlier by the Courts, was discussed at length by the Apex Court time and again in Waman Rao & Ors. Vs. Union of India & Ors.: (1981) 2 SCC 362. The rule of stare decisis was aptly discussed in Union of India & Anr. Vs. Raghubir Singh (Dead) by LRs Etc.: (1989) 2 SCC 754 in which the Apex Court held as under:- [2025:RJ-JP:28660-DB] (3 of 9) [SAW-607/2025]

8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value developing the jurisprudence of the law. 9. 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.

In Mishri Lal (Dead) by Lrs. Vs. Dhirendra Nath (Dead) by Lrs. & Ors.: (1999) 4 SCC 11, the Apex Court held as under:- “13. Incidentally, be it noted that the decision in Budha's case (supra) was on interpretation of the Rajasthan Zamindari and Biswedari Abolition Act, 1959 whereas the Madhya Bharat Zamindari Abolition Act, 1951 came up for consideration in Meharban Singh case. The latter decision of this Court in Budha case however, has not noticed the judgment of this Court in Meharban Singh case and by reason of the observation of this Court in Para-15 of the Judgment in Budha case it cannot but be said that the decision in the latter jugdment was on the peculiar facts of the case. It is further to be noted that Meharban Singh case came to be decided as early as 1970 and has been followed for the last three decades in the State of Madhya Pradesh and innumerable number of matters have been dealt with on the basis thereof and in the event, a different view is expressed today, so far as this specific legislation is concerned, it would unsettle the situation in the State of Madhya Pradesh and it is on this score also that reliance on the doctrine of `stare decisis' may be apposite. While it is true that the doctrine has no statutory [2025:RJ-JP:28660-DB] (4 of 9) [SAW-607/2025] sanction and the same is based on a Rule of convenience and expediency and as also on `Public Policy' but in our view, the doctrine should and ought always to be strictly adhered to by the courts of law to sub-serve the ends of justice.

In Krishena Kumar Vs. Union of India & Ors.: (1990) 4 SCC 207,the Apex Court held as under:-

33. Stare decisis et non guieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 14 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it. But in Nakara it was never required to be decided that all the retirees formed a class and no further classification was permissible.

The Constitution Bench in Central Board of Dawoodi Bohra Community Vs. State of Maharashtra: (2005) 2 SCC 673 reaffirmed the doctrine of binding precedence as it has the merit of promoting certainty and consistency in judicial decisions.

In Purbanchal Cables And Conductors Private Limited Vs. Assam State Electricity Board and Anr.: (2012) 7 SCC 462, the Apex Court held as under:- “74. Judicial discipline demands that a decision of a Division Bench of two Judges should be followed by another Division Bench of two Judges and this has [2025:RJ-JP:28660-DB] (5 of 9) [SAW-607/2025] been stated time and again by this Court. In Raghubir Singh, a Constitution Bench of this Court speaking through R.S. Pathak, C.J. held: (SCC p.778 para 28)

28. We are of the opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court.

In Union of India Vs. Paras Laminates (P) Ltd., this Court has observed: (SCC pp. 457-58, para 9) “9. It is true that a Bench of two members must not lightly disregard the decision of another Bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a Larger Bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of Tribunals or courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters. Classification of particular goods adopted in earlier decisions must not be lightly disregarded in subsequent decisions, lest such judicial inconsistency should shake public confidence in the administration of justice.

In Young Vs. Bristol Aeroplane Company Limited ((1944) AII 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 rendered, in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by the Supreme Court while interpreting Article 141 of the Constitution of India which embodies the doctrine of precedence 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: [2025:RJ-JP:28660-DB] (6 of 9) [SAW-607/2025]

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 Vs. Bristol Aeroplane Co. Ltd. 1944 KB 718: (1944) 2 All ER 293. In Huddersfield Police Authority Vs. 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.

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 the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.

In Government of A.P. and Anr. Vs. B. Satyanarayana Rao (dead) by LRs. and Ors. MANU/SC/0275/2000: (2000) 4 SCC 262, the Apex Court observed that 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.

In Kishan Rao Vs. Nikhil Super Speciality Hospital and Anr. MANU/SC/0332/2010: ((2010) 5 SCC 513), the Apex Court held that when a judgment is rendered by ignoring the provisions of the governing statute and earlier Larger Bench decision on the point such decisions are rendered ‘Per incuriam’. [2025:RJ-JP:28660-DB] (7 of 9) [SAW-607/2025] This concept of ‘Per incuriam’ has been explained in many decisions of Apex Court. Justice Sabyasachi Mukharji (as His Lordship then was) speaking for the majority in the case of A.R. Antulay Vs. R.S. Nayak and Anr. MANU/SC/0002/1988 ((1988) 2 SCC 602) explained the concept in paragraph 42 at page 652 of the report in following words:

Per incuriam" are those 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.

In view of above, we find that Dena Bank vs Ghanshyam (supra) having not been noticed in The Managing Director, Metropolitan Transport Corporation(Chennai) Ltd. (supra) as well as Uttaranchal Forest Development Corporation(supra), this court would be bound to follow Dena Bank vs Ghanshyam (supra) wherein the Apex Court held as under:- “8. Section 17-B provides that where the employer prefers any proceeding against an award directing reinstatement of any workman, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court. The proviso says that if the High Court or the Supreme Court is satisfied that the workman had been employed and had been receiving adequate remuneration during such period or part thereof, the Court shall order that no wages shall be payable under that section for such period or part, as the case may be.

12. We have mentioned above that the import of Section 17-B admits of no doubt that Parliament intended that the workman should get the last drawn wages from the date of the award till the challenge to the award is finally decided which is in accord with the Statement of Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17-B was inserted in the Act. We have also pointed out above that Section 17-B does not preclude the High Courts or this Court from granting better benefits more just and equitable on the facts of a case than contemplated by that provision to a workman. By an interim order the High Court did not grant relief in terms of Section 17-B, nay, there is no reference to that Section in the orders of the High Court, therefore, in this case the question of payment of “full wages last drawn” to the respondent does not arise. In the light of the above discussion the power of the High Court to pass the impugned order cannot but be upheld so [2025:RJ-JP:28660-DB] (9 of 9) [SAW-607/2025] the respondent is entitled to his salary in terms of the said order.”

Even otherwise, if we independently read the provision of Section 17-B of the Act, we notice that payment of full wages last drawn which has to be made by the employer includes any maintenance allowance that may be admissible to him under any rule “during the pendency of such proceedings in the High Court or Hon’ble Supreme Court”. The words “during the pendency of such proceedings” would indicate that the payment has to be made from the date the petition is filed challenging the order. Accordingly, we uphold the order passed by the learned Single Judge.

As regards filing of reply to application under Section 17-B is concerned, it is always open for the appellant to move appropriate application seeking modification or recalling of the order if they have any fact to indicate that the affidavit filed by the workman was false.

With the aforesaid observation, the present Special Appeal Writ is dismissed.

All pending application(s), if any, stands disposed of. (CHANDRA PRAKASH SHRIMALI),J (SANJEEV PRAKASH SHARMA),J HEENA/MAHIMA/89