TMI Blog2004 (8) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... sation. 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 ₹ 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 ₹ 39,000/- as full and final settlement. He had accepted a cheque for the aforementioned sum of ₹ 9,030/- issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 vs. The Management), we deem, it proper not to punish the employer as above only for an alleged shortfall of ₹ 552..87 which was not pleaded in the written statement of the workman. We do not think that non-payment of ₹ 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 ₹ 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 ₹ 552.87 (rounded off to ₹ 553) along with a compensation of ₹ 6634.50 (equivalent to wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emplated 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 requirements or conditions had been provided for by a statute subject to the condition that no public interest i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 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 just ..... X X X X Extracts X X X X X X X X Extracts X X X X
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