2004 (8) TMI 685 - SC - Indian Laws

Whether the judgment of the learned Single Judge upholding the award passed by the Industrial Tribunal is to be restored?

Summary

Issues Involved:
1. Legality of the workman's retrenchment.
2. Compliance with Section 25-F(b) of the Industrial Disputes Act, 1947.
3. Compliance with Rule 77-A of the West Bengal Industrial Disputes Rules.
4. The plea of waiver and substantial compliance by the employer.

Detailed Analysis:

1. Legality of the Workman's Retrenchment:
The workman was initially dismissed from service following a disciplinary proceeding. This dismissal was overturned by the Industrial Tribunal, which reinstated the workman with full back-wages and compensation. However, the workman was retrenched within a month of rejoining, leading to further legal disputes. The Industrial Tribunal later deemed this retrenchment illegal, asserting that the workman should be considered in continuous service with all benefits.

2. Compliance with Section 25-F(b) of the Industrial Disputes Act, 1947:
Section 25-F(b) mandates specific conditions for retrenchment, including one month's notice or wages in lieu, compensation equivalent to fifteen days' average pay for every completed year of service, and notice to the appropriate government. The Industrial Tribunal and the learned Single Judge both found that these conditions were not met, rendering the retrenchment void ab initio. The Division Bench, however, accepted the employer's plea of substantial compliance, noting that the workman accepted a major part of the compensation and raised no objections until the argument stage.

3. Compliance with Rule 77-A of the West Bengal Industrial Disputes Rules:
The Industrial Tribunal also found non-compliance with Rule 77-A, which requires maintaining a seniority list. The Tribunal noted that the employer failed to show that the workman was the junior-most in his category, thus violating the "last come, first go" principle. This finding was not addressed by the Division Bench but was upheld by the learned Single Judge, further supporting the illegality of the retrenchment.

4. The Plea of Waiver and Substantial Compliance by the Employer:
The Division Bench accepted the employer's plea of waiver, suggesting that the workman's acceptance of the compensation indicated a waiver of his rights. However, the Supreme Court clarified that waiver is a contractual agreement and must be explicitly pleaded and proven. The employer's failure to raise this plea before the Tribunal or the Single Judge meant it could not be considered at the appellate stage. The Supreme Court emphasized that Section 25-F(b) is imperative, and non-compliance renders retrenchment void ab initio, regardless of any alleged waiver.

Conclusion:
The Supreme Court set aside the Division Bench's judgment, restoring the learned Single Judge's decision, which upheld the Industrial Tribunal's award. The retrenchment was deemed illegal due to non-compliance with Section 25-F(b) and Rule 77-A. The appeal was allowed, and the workman was entitled to reinstatement with all consequential benefits.

Separate Judgments:
There were no separate judgments delivered by the judges in this case. The judgment was a unified decision of the Supreme Court.