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CASE NO.:

Appeal (civil) 7251 of 2001

PETITIONER:

Krishna Bahadur

RESPONDENT:

M/s Purna Theatre & Ors.

DATE OF JUDGMENT: 25/08/2004

BENCH:

N. Santosh Hegde & S.B. Sinha

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

The workman is in appeal before us being aggrieved by and

dissatisfied with the judgment and order dated 13.10.2000 passed by the

Division Bench of the High Court of Calcutta in Appeal No.434 of 1996.

The case at hand has a chequered history. The appellant herein was

appointed in the post of Messenger-cum-Bearer in the establishment of the

respondent herein, a Cinema House, on 31.3.1978. He was subsequently

confirmed on the said post. A disciplinary proceeding was initiated against

him wherein he was found guilty, whereupon he was dismissed from

services. The said order of dismissal was the subject-matter of an industrial

dispute. The Industrial Tribunal by reason of an award set aside the said

order of dismissal with full back-wages and compensation. On or about

1.5.1991, the appellant was permitted to join his duties but back-wages were

not paid. He was, however, retrenched from services within one month

from his joining i.e. 30.5.1991. A sum of Rs.9,030/- was paid as

retrenchment compensation which the appellant is said to have received

under protest. A trade union known as Bengal Motion Pictures Employees

Union took up the cause of the Appellant, inter alia, on the ground of

contravention of the legal requirements as contained in Section 25-G of the

Industrial Disputes Act, 1947 as also insufficiency of the amount of

compensation paid to the appellant in terms of Section 25-F(b) thereof. An

industrial dispute as regard his retrenchment was raised before the Assistant

Labour Commissioner which failed; whereupon the Industrial Tribunal was

approached by the Appellant. In the meanwhile, the appellant had also

initiated a proceeding under Section 33-C(2) of the Industrial Disputes Act,

1947 which ended in an amicable settlement in terms whereof the Appellant

allegedly agreed to receive a sum of Rs.39,000/- as full and final settlement.

He had accepted a cheque for the aforementioned sum of Rs.9,030/- issued

by the management allegedly as part payment of his compensation of

Rs.39,000/- which was deducted from the aforementioned settled amount of

Rs.39,000/-. The Industrial Tribunal by its order dated 28.12.1995 held :

"Having regard to the facts and circumstances and

in consideration of the evidence and record I hold

that the retrenchment of the concerned workman

was illegal and as such he should be deemed to be

in continuous service with all benefits. The issues

are answered accordingly."

A writ petition was filed by the respondent herein questioning the

correctness or otherwise of the said award before the Calcutta High Court

which was marked as Writ Petition No.1872 of 1996. The said writ petition

was dismissed by a learned Single Judge, holding :

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"Thus, regarding (sic regard) being had the

principles of law discussed above in the light of

the fact and circumstances of the instant case, I

have no hesitation to hold that the impugned

retrenchment was effected without complying with

the mandatory requirements of Section 25F(b) of

the Industrial Disputes Act and that the Tribunal

was well within its jurisdiction in recoding a

finding to that effect. Such a retrenchment must,

accordingly, be held to be void ab intio and

consequently, the respondent must be deemed to

be in service and entitled to all consequential

benefits. I, therefore, find no justification for

quashing the impugned Award. In such view of

the matter, the petitioner is not entitled to any

relief and the instant writ application fails. The

writ application is, accordingly, dismissed without,

however, any order as to costs."

The respondent herein preferred an appeal thereagainst before a

Division Bench of the Calcutta High Court which was marked as Appeal

No.434 of 1996. A plea as regard substantial compliance of the

requirements of law on the part of the workman was raised for the first time.

Accepting the said plea, the Division Bench by reason of the impugned

judgment allowed the appeal holding :

"So, the fact remains that the employer bona

fidely paid the said amount of Rs.9030.30 along

with the notice of retrenchment and the workman

duly accepted the said amount. Hence, the plea of

waiver in a case of this nature as argued by the ld.

Advocate for the appellant can be upheld. Above

all, when the employer bona fidely paid the major

part of retrenchment compensation after a bona

fide calculation, not opposed by anybody till the

argument before the Tribunal, we fail to

understand as to why the employer can be

punished by ordering him to pay the entire

backwages with the privilege of immediate

reinstatement as ordered in the award. Following

the principle adopted by the Apex Court in 1980

(II) LLJ 124 (SC) (Workman of Sudder Workshop

of Jhorhat Tea Company \026 vs. The Management),

we deem, it proper not to punish the employer as

above only for an alleged shortfall of Rs.552..87

which was not pleaded in the written statement of

the workman. We do not think that non-payment

of Rs.552.87 as calculated in the award at the

argument stage only, can make the retrenchment

order nugatory. On the other hand, we take the

view, following the principle adopted in Workmen

of Coimbatore Pioneer 'B' Ltd. (supra) that for

non non-payment of the short compensation of

Rs.552.87, a substantial amount can be paid as

compensation.

Accordingly, in setting aside the award and

allowing this appeal, the appellant is directed to

pay a sum of Rs.552.87 (rounded off to Rs.553)

along with a compensation of Rs.6634.50

(equivalent to wages for six months) to the

workman \026 the respondent no.4 within six weeks."

The workman, thus, is in appeal before us from the said judgment.

The respondent management has not appeared despite service of notice.

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Mr. Bijan Kumar Ghosh, learned counsel appearing on behalf of the

appellant, would submit that the Division Bench of the High Court

committed a manifest error in passing the impugned judgment and order

insofar as it failed to take into consideration that Section 25-F(b) of the

Industrial Disputes Act is imperative in character. Keeping in view the fact

that admittedly the said legal requirements thereof had not been complied

with and furthermore plea of waiver having not been raised before the

Tribunal or before the learned Single Judge, it was impermissible for the

Division Bench to pass the impugned judgment.

We may usefully refer to the submissions made on behalf of the

respondent \026 management in writ proceedings as had been noticed by the

learned Single Judge of the High Court in his judgment:

"Mr. Arunava Ghosh, ld. Advocate

appearing for the petitioner company, raised the

following points.

First, it was urged that the Tribunal fell into

error of law in coming to a conclusion that there

was non-compliance of requirements of Sec.25-

F(b) in as much as such a plea was never put

forward on behalf of the workman in his written

statement nor was it substantiated by any evidence.

Secondly it was contended that when the

Workman did neither raised any plea of

inadequacy of the retrenchment compensation nor

adduce any evidence in this regard, the Tribunal

should not have embarked upon an inquiry for the

purpose of ascertaining whether the compensation

money was adequate or not. Thirdly, it was

contended that as there was neither any pleading

nor any evidence regarding the shortfall in the

payment of retrenchment compensation, the

Tribunal could not go into that question at the

stage of argument. Fourthly, it was urged that

omission to maintain seniority list under Rule 77A

does not render the retrenchment illegal or bad in

law, particularly when there was clear admission

on the part of the workman in his evidence that he

was the last person to be employed in the category

of workman to which he belonged and as such the

Tribunal's finding, if there be any, regarding the

observance of the principles of 'last come first go'

as contemplated under Section 25G was perverse

and was not based on evidence. Mr. Ghosh cited a

number of decisions in support of his contentions."

It is, therefore, evident that the question of a bona fide action on the

part of the employer or waiver on the part of the appellant herein had not

been raised. The respondent before the learned Single Judge was although

very emphatic as regard compliance of requirements of Section 25-F(b) of

the Industrial Disputes Act but no contention as regard the plea of waiver

was raised. Even the question of substantial compliance or bonafide action

on the part of the said respondent was not raised.

The principle of waiver although is akin to the principle of estoppel;

the difference between the two, however, is that whereas estoppel is not a

cause of action; it is a rule of evidence; waiver is contractual and may

constitute a cause of action; it is an agreement between the parties and a

party fully knowing of its rights has agreed not to assert a right for a

consideration.

A right can be waived by the party for whose benefit certain

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requirements or conditions had been provided for by a statute subject to the

condition that no public interest is involved therein. Whenever waiver is

pleaded it is for the party pleading the same to show that an agreement

waiving the right in consideration of some compromise came into being.

Statutory right, however, may also be waived by his conduct.

In Bank of India and Others etc. vs. O.P. Swarnakar and Others etc.

[(2003) 2 SCC 721], it was noticed :

"115.The Scheme is contractual in nature. The

contractual right derived by the employees

concerned, therefore, could be waived. The

employees concerned having accepted a part of the

benefit could not be permitted to approbate and

reprobate nor can they be permitted to resile from

their earlier stand."

It is neither in doubt nor in dispute that the provision of Section 25-

F(b) is imperative in character. The provision postulates the fulfillment of

the following three conditions :

(i) One month's notice in writing indicating the reasons for

retrenchment or wages in lieu of such notice;

(ii) Payment of compensation equivalent to fifteen days, average

pay for every completed year of continuous service or any part

thereof in excess of six months; and

(iii) Notice to the appropriate Government in the prescribed manner.

The requirement to comply with the provision of Section 25-F(b) has

been held to be mandatory before retrenchment of a workman is given effect

to. In the event of any contravention of the said mandatory requirement, the

retrenchment would be rendered void ab initio.

In Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd. vs. The

Management [(1980) 2 L.L.J. 124], whereupon reliance had been placed by

the Division Bench, this Court held :

"\005That apart, if there be non-compliance with S.

25F, the law is plain that the retrenchment is

bad\005."

In that case, however, compensation had been computed on the basis

of wages previously paid and not on the basis of the Wage Board Award.

The retrenchment took place on 5.11.1986. No plea as regard non-payment

of compensation calculated on the basis thereof was taken before the

Tribunal. Even the award did not proceed on that basis.

The new plea based on the facts was not permitted to be raised by the

High Court. This Court noticed that the Wage Board Award was subsequent

to the retrenchment; although it was applied retrospectively i.e. with effect

from 1.4.1966. In that situation, it was observed :

"\005In the absence of any basis for this new plea

we are unable to reopen an ancient matter of 1966

and, agreeing with the High Court, dismiss the

appeal. But the 16 workmen, being eligible

admittedly for the Wage Board scale, will be paid

the difference for the period between 1.4.1966 to

5.11.1966."

We may furthermore notice that the learned Industrial Tribunal

interfered with the retrenchment of the appellant not only on the ground of

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non-compliance of the provisions of Section 25-F(b) of the Industrial

Disputes Act but also on the ground of contravention of Rule 77-A of the

West Bengal Industrial Disputes Rules, stating :

"Moreover the company has not shown by

means of a seniority lists that the concerned

workman was the junior most amongst the same

category of workers. When there is such a

controversy and when no such lists was maintained

by the company although maintaining of such lists

can be said to be a compulsory compliance of the

rules framed under the Industrial Disputes Act on

the part of the Company (Vide 77A of the West

Bengal Industrial Disputes Rules) it must be held

that the retrenchment was illegal. Mere evidence

to show the seniority of the workman of a

particular category is not enough to justify a

retrenchment of a workman on the ground of

surplus hand."

After a detailed reference to the evidence adduced on behalf of the

Management, the Tribunal held :

"I do not understand why the company keeps

lacuna in observing the legal procedure provided

by the rules framed under the statute to maintain

peace and harmony. In the industry particularly

which are very much formal and not at all difficult

to be maintained and can be done with least effort.

This has been very much necessary and essential in

this case in its peculiar background when the

concerned workman is going to be retrenched

within a very short period after his reinstatement

with full back wages and incidental benefits by

virtue of an award by the Seventh Industrial

Tribunal in an earlier reference Case No.1647-

I.R./IR/11L-24/85 corresponding to Case NO.VIII-

152/86 after he was dismissed from service. The

Company should have maintained the seniority

lists as required under the rule to show from

impartial attitude towards the workman in the

category to which Krishna Bahadur belongs. That

having not been done the action of the Company

suffers from informative (sic for infirmities) and it

deserves to be nullified."

It would appear from the judgment of the learned Single Judge dated

25.9.1996 in Writ Petition No.1872 of 1996 that correctness or otherwise of

the finding of the Industrial Tribunal as regard non-compliance of the

provisions of Rule 77A of the West Bengal Industrial Disputes Rules had

been questioned. The said contention must be held to have negatived by the

learned Single Judge also keeping in view the provisions analogous to

Explanation-V appended to Section 11 of the Code of Civil Procedure. The

Division Bench of the High Court unfortunately did not address itself to the

said question at all.

For the reasons aforementioned, the impugned judgment of the

Division Bench cannot be upheld. It is set aside accordingly and the

judgment of the learned Single Judge upholding the award passed by the

Industrial Tribunal is restored. The appeal is allowed. In the facts and

circumstances of the case, there shall be no order as to costs.