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

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 the 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 28.12.1995regard 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 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,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 recording a finding to that effect. Such a retrenchment must, accordingly, be held to be void ab initio 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 there against 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 appealthe 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 awarded. Following the principle adopted by the Apex Court in 1980 (II) LLJ 124 (SC) (Workman of Sudder Workshop of Jhorhat Tea Company 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-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.

Reasoning:
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.