Case: Krishna Bahadur Vs. M/S. Purna Theatre

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. 10. A right can be waived by the party for whose benefit certain 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. 11. 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." 12. 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 months 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. 13. 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. 14. 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: "... That apart, if there be non-compliance with S. 25F, the law is plain that the retrenchment is bad.." 15. 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. 16. 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: "... In 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 scale, will be paid the difference for the period between 1.4.1966 to 5.11.1966". 17. We may furthermore notice that the learned Industrial Tribunal interfered with the retrenchment of the appellant not only on the ground of non-compliance of the provisions of Section 25-F(b) of the Industrial Disputes Act but also on the ground of the 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 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". 18. 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." 19. 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.20. 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. 21.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 notwould 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.20. 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.