Madras High Court
Management Of Shadlow India Ltd. vs Presiding Officer, Principal Labour ... on 15 October, 1999
Equivalent citations: (2000)IILLJ208MAD
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
ORDER V.S. Sirpurkar, J.
1. Feeling aggrieved by the award passed by the Principal Labour Court, Chennai holding that the retrenchment of the second respondent herein not to be justifiable on account of the short retrenchment compensation offered, the petitioner-Management has come up before this Court, challenging the award.
2. Admittedly, the second respondent was working under the petitioner-management right since August 31, 1962 in various capacities and ultimately on January 1, 1977 he was working in the post of charge-hand in which post he continued till his retrenchment on May 31, 1984. The second respondent, therefore, raised an industrial dispute in consequence of which a reference was made to the Principal Labour Court at Chennai. The only issue to be decided in the said reference was as to whether the non-employment of the second respondent was justified? In his claim petition, besides the above-mentioned facts, the petitioner had pleaded that he was retrenched along with 50 other workers on account of a strike in the company from November 25, 1983 to February 21, 1984 and ultimately there was a settlement in pursuance of which the permanent employees were taken back. However, though the second respondent sent a legal notice to the petitioner-Management on January 20, 1987, it was claimed by the Management that the second respondent was a worker and the Management was ready to pay the retrenchment compensation. It is stated by the petitioner-Management that the second respondent refused to accept the retrenchment compensation as the Management did not offer the compensation which he was entitled to receive. It was for this reason then, it was claimed that the retrenchment was illegal.
3. The petitioner-Management opposed this claim firstly on the ground that the second respondent was not a worker but a Supervisor. According to the petitioner-Management, since the second respondent was working in a supervisory category and was receiving salary above Rs. 1,600/-, he could not therefore, be termed to be a worker. The Management also claimed that, though it was prepared to take back the second respondent, it was he, who had refused to join. The Management further claimed that there was no necessity to seek permission before retrenching the second respondent from service and they insisted that the proper retrenchment compensation was offered to him which he himself refused to accept.
4. In support of his claim, the second respondent examined himself as W.W.1 while on behalf of the Management, two witnesses viz., one R.S.K. Raman and one S. Krishnan were examined as M.W.I and M.W. 2 respectively. During the pendency of the award proceedings and after the evidence on the part of the Management wa$ over, an application came to be moved before the Labour Court vide LA. No. 222 of 1992. It was made out in this petition that M.W.1 R.S.K. Raman had let out an unguarded admission that the monthly salary of the second respondent was more than Rs. 1,600/-, though he had also claimed he did not know the salary and the same could be stated only after seeing the records. It was, therefore, prayed in the said LA. that the witness should be allowed to be recalled and to place and explain the documents on record to substantiate the claim of the management that the salary of the second respondent was not Rs. 1,600/- but less. This was presumably because the retrenchment compensation was paid holding his salary to be Rs. 1,162/- approximately. Rightly or wrongly, the application came to be allowed by the Labour Court by its order dated July 27, 1992. The witness was recalled and was allowed to explain his admission and also file some documents and explain some other on the records. It was thereafter that the award was passed in which the Labour Court held that firstly the seqond respondent was a workman and could not be termed to be a supervisor. It secondly held that the Management had made the calculation of the retrenchment compensation relying on the salary paid in the lay-off period and not on the actual salary and as such the compensation offered was short and, therefore, the retrenchment was illegal. It held that the compensation which was offered was of Rs. 13,950.12 was clearly short considering that the witness of the Management himself had admitted that the workman was drawing the salary of more than Rs. 1,600/-. In that view, it held, the retrenchment not to be justifiable and directed the management to reinstate the workman and with continuity of service and back wages and with all other benefits. It is this award which is challenged in the present writ petition at the instance of the management.
5. Mr. N. Balasubramanian, learned counsel appearing on behalf of the petitioner-Management has specifically given up his contention that the second respondent was not a workman and that he was serving as a Supervisor drawing over Rs. 1,600/-. He has restricted only to the question of payment of retrenchment compensation, which according to the Labour Court was short. According to him, retrenchment compensation was properly offered and the Labour Court has not bothered to take the evidence particularly the evidence of the recalled witness into consideration while giving the finding on that question. Opposing him, Mr. N.G.R.Prasad, learned counsel appearing on behalf of the second respondent-workman, contends that the management had raised a defence that the second respondent was not a workman, but a Supervisor and as such he had no right to raise a dispute. According to the learned counsel, in this defence, there was a latent admission that the salary of the second respondent was more than Rs. 1,600/- and, therefore, the Management cannot come back and plead that the salary was less than Rs 1.600/- and more particularly Rs. 1,162/- which salary has been taken into consideration for fixing the compensation. Besides this specific contention; Mr. Prasad also argues that even otherwise, the retrenchment compensation offered was short.
6. It is an admitted position that during the pendency of this petition, the second respondent-employee reached the superannuation age and he cannot be reinstated now. It is also an admitted position that owing to the interim order passed by this Court during the pendency of this writ petition, the second respondent was paid Rs. 30,000/- as salary from the date of the order till the date of his superannuation. The interim order of the Court seems to have been passed on September 23, 1994. In this order, the Court confirmed the stay order in relation to the recovery of back wages on condition that the entire amount of back wages is deposited in the Court and the interest therefor is paid to the workman. There was an appeal filed by the management against this order vide W.A.No. 265 of 1994 wherein the Division Bench directed that instead of depositing the entire amount of back wages, the petitioner- Management shall pay at the rate of Rs. 2000/- per month to the second respondent from January 1994 and that towards the arrears due, the Management should pay Rs. 30,000/- and that the Management must continue to pay Rs. 2,000/- per month. In future also, there is no dispute that the said amount has been paid till the date on which the second respondent would have been superannuated.
7. In view of the concession during the arguments by the petitioner's counsel that the second respondent was a workman, the controversy has really narrowed down. Mr. Prasad, learned counsel appearing for the second respondent, however, submits that the petitioner should not be allowed to go back on his contention as the management had, in fact, raised a defence to the claim of the workman/second respondent that he could not have come before the Labour Court not being a workman and being a supervisor drawing more than Rs. 1,600/-. Mr. Prasad, points out that in that the management had given a tacit admission that the salary of the second respondent was more than Rs. 1,600/-and if that was so, then, the retrenchment compensation which has been calculated on the basis of the lower salary, would clearly be short compensation. According to Mr. Prasad, it is only in order to extricate from this difficult situation that the said concession was being made. Though the contention of the second respondent's counsel appears to be very attractive, it has no merit. It will be seen in his claim statement that the workman himself had claimed that his salary was more than Rs. 1,600/-. I have gone through the claim petition myself which suggests that it was the claim of the second respondent-workman that his last salary was more than Rs. 1,600/-. If therefore the management came with the plea that the duties of the workman was of supervisory nature, the defence was clearly raised only to non-suit the second respondent. Had the management been able to substantiate its plea that the duty of the second respondent was of supervisory nature, that would have been the end of the claim itself as in that case, a factual position would be established that the second respondent was holding a supervisory post and was earning more than Rs. 1,600/- and as such was not a workman so as to be able to go before the Labour Court and raise a valid industrial dispute. In my opinion, the plea was only with this objective, but that is not the only plea of the management. That is also a plea that a proper retrenchment compensation was given to the second respondent. In that view, the management had clearly raised an alternative plea that even otherwise, the second respondent was offered a proper retrenchment compensation based on the salary drawn by him. The plea being in the nature of an alternative plea, nothing would be wrong in allowing the management to give up its . contention that the second respondent was not a workman but a supervisor. There is nothing wrong in taking the alternative plea and in this case, the management has clearly taken the alternative plea that the workman was offered proper retrenchment compensation, though the plea is not raised in a very happy language. All the same, it is there in the counter of the management. Therefore, the second respondent cannot now validly argue that the management should be bound by its so called admission, even if there was a latent admission. In fact, on this question also, a close reading of the counter of the management would show that there is no such admission in the counter. The plea has been raised by the second respondent that his salary was more than Rs. 1,600/- and to nip that claim in bud, the management had come out with a theory that his job was supervisor's. This, therefore, cannot be said to be an admission on the part of the management that the salary was Rs. 1,600/- or above, more particularly when it has separately raised a plea that the retrenchment compensation was properly offered having been calculated on the actual proper salary. The contention of Mr. Prasad has to be therefore, rejected.
8. Once this position is obtained, the controversy has narrowed down further to see as to whether the Labour Court had correctly held that the compensation offered was short. For this reason, the learned counsel for the petitioner took me to the award and pointed out that the finding given by the Labour Court was that the retrenchment compensation was calculated on the basis of the lay-off period salaries. The learned counsel for the petitioner pointed out that factually speaking, this finding was completely incorrect. I have been referred to Ex.M-39 wherein the retrenchment compensation has been calculated as per the salary paid from February, 1984 to May 1984. The learned counsel points out that the average salary comes to Rs. 1,162.51, He also points out with reference to the other documents that the lay-off period salary was much shorter than this. He has pointed out that Exhibits M-43, M-45 and M-47 show the lay-off salaries for the months of March, 1984, April, 1984 and May, 1984 to be Rs. 924.06, 836.00 and 568.26 respectively and, therefore, the average salary during lay-off period would come to Rs. 776.11. He has pointed out that the retrenchment compensation has not been calculated on that lay-off period salary, but on the actual salary as reflected in Ex. M-39. This could not be controverted by Mr. Prasad, learned counsel appearing on behalf of the second respondent and he also conceded that the salary was calculated at much higher rate than that of the lay-off period salary. It is, therefore, clear that the finding in that behalf is incorrect. It is also seen from the award that the Labour Court has chosen to rely on the admission by R.S.K. Raman that the salary was more than Rs. 1,600/-. It has already been explained that the said admission cannot be read now particularly in view of the recalling of the witness. It will be remembered that the witness not only was allowed to be recalled, but also explained the documents on record and to show that the actual average monthly salary was Rs. 1,162.51 andnot above Rs. 1,600.00. As a matter of fact, the: second respondent did not choose to challenge the order passed in I. A. No. 222 of 1992 and allowed the evidence to go on record. In that view, the reliance on the part of the Labour Court on the earlier so-called admission by the witness is wholly uncalled for. Even otherwise, the said admission that the salary was more than Rs. 1,600/- was liable to be read on the backdrop of the earlier assertion of the witness that he could not have told unless he looked into the records. In that view, the Labour Court is wholly incorrect in giving the finding that the salary was calculated on the basis of the lay-off period salary and not on the actual salary and the retrenchment compensation was short for that reason.
9. This would have normally been an end of the petition. However, during the course of the arguments, it turned out that even if the monthly average pay was correctly arrived at Rs. 1,162/- even men the compensation of Rs. 12,787.61 offered was incorrect as it was not properly calculated more particularly in keeping with the provision of Section 25F(b) of the Industrial Disputes Act. It seems, for calculating the compensation, the management has divided the said average pay of Rs. 1,162/-by 2 so as to make it a 15 days' salary and has multiplied by 22 that being the figure of the years of service put in by the second respondent. It is only by this formula that the retrenchment compensation has been calculated. It will be worthwhile to see as to whether this could be a correct formula. Section 25-F(b) of the Industrial Disputes Act runs as under:
"25-F. Condition precedent to retrenchment of workman. - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) xx xx xx
(b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; "
10. From the bare reading of that Section, it is clear that the retrenchment compensation is equivalent to "fifteen days'" average pay for every completed year of continuous service or any part thereof in excess of six months. There ' is no dispute that the second respondent has put in 22 years of service. The dispute is only about fifteen days' average pay. The management has chosen to divide the average monthly salary by 2 for arriving at the fifteen days' average pay. The question is whether the management has correctly arrived at the fifteen days' average pay. According to the second respondent, dividing the average monthly salary by 2 for arriving at the fifteen days' average pay, would not be the correct method. The correct method would be first to arrive at a day's pay and then to multiply by 15. The second respondent further submits that for that purpose the average monthly salary of the workman would have to be divided by 26 and not by 30, because ordinarily the workman has to work only on 26 days to earn his salary for a month. If the workman works on 26 days, he has a right to get four weekly holidays. If the salary of Rs. 1,162.51 is divided by 26 and multiplied by 15 and this amount is multiplied by 22, the actual retrenchment compensation would be more than the one which has been offered to the second respondent. This, in short, is the plea raised by the second respondent now. It must be stated that this plea was never raised either before the Labour Court or even before this Court by way of a specific counter. It is only during the arguments that it is being realised that the calculation of 15 days' average pay is incorrect. The learned Counsel for the petitioner, therefore, submits that the plea should not be allowed to be raised now only during the arguments. When the plea was raised, since the petitioner's side was caught unaware of this, the petitioner's side sought the adjournment which adjournment was granted to them. It is thereafter, the Counsel for both sides have addressed the Court later on this question.
11. It would be first worthwhile to see as to whether in reality, the payment is short and whether for arriving at 15 days' average pay, it is necessary to divide the monthly wages by 30 or by 26. In this behalf, the Bombay High Court in the reported decision in (1993-III-LLJ-(Suppl.)-299) (Trade Wings Ltd. v. Prabhakar Dattaram Phodkar) has clearly held that the worker, in order to earn his salary of a month, has to work only for 26 days and further held that in order to arrive at 15 days' average pay, it will be necessary to first calculate one day's pay which would be the total monthly salary divided by 26 and not by 30. In coming to this conclusion, Justice ASHOK AGARWAL (as His Lordship then was) has relied upon the observations and the ratio laid down in 1984 Lab IC 1458 (Jeewanlal (1929) Ltd. v. Appellate Authority under Payment of Gratuity Act). In the said judgment, the Apex Court was called upon to interpret Section 4(2) of the Payment of Gratuity Act which contained the phraseology of "fifteen days' wages". The learned Judge of the Bombay High Court found parity with this phraseology in Payment of Gratuity Act with the Phraseology in Section 25-F of the Industrial Disputes Act and came to the conclusion that since the Apex Court had clearly held that the employee never works for all the 30 days in a month and gets 52 days in a year as paid holidays and gets full month's wages not by remaining on duty for all the 30 days in a month, but by working and doing duty for only 26 days, then, it would be proper to arrive at one day's wage by dividing the salary by 26 and not by 30. As in that case, here also the learned Counsel for the management invites my attention to the language of Section 4(2) of the Payment of Gratuity Act and points out that while Section 4(2) of the Payment of Gratuity Act speaks of 15 days' wages, the phraseology used in Section 25-F(b) of the Industrial Disputes Act is 15 days average pay. The learned Counsel invites my attention to Section 2(aaa) of the Industrial Disputes Act, where 'average pay' is defined as under:
"average pay" means the average of the wages payable to a workman-
(i) in the case of monthly-paid workman, in the three calendar months;
(ii) in the case of weekly-paid workman, in the four complete weeks; and
(iii) in the case of daily-paid workman, in the twelve full working days."
The submission is that there has to be some difference in the interpretation of the terms "fifteen days' wages" and "fifteen days' average wages". The learned Counsel further goes on to suggest that what has been held by the Apex Court in Jeewanlal's case, cited (supra), could not be made applicable to the present case as the Apex Court therein was considering an entirely different provision in an entirely different enactment. The learned Counsel further submits that as per the established canons of the law of interpretation of Statutes, merely because the phraseology is common or similar, what applied to the interpretation of the provision of one Act cannot bodily be lifted up and superimposed on the provision of another Act. There is undoubtedly much force in the argument, but on the deeper consideration, it would be apparent that the interpretation by the Bombay High Court of the phraseology is correct interpretation. It will be seen that in the Payment of Gratuity Act also the concept of 15 days' pay for every completed year of service for the purpose of calculating the gratuity is to be found. The concept in Section 25-F of the Industrial Disputes Act is no different, excepting that in Section 25-F the term "average pay" is used. The phraseology is different and the word" average pay" has been so used in the Industrial Disputes Act, because the Industrial Disputes Act had to take into its sweep all kinds of workers viz., those workers who were daily wage workers, weekly wage workers and the ordinary monthly wage workers. The subject of payment of gratuity is restricted only to a particular section of employees who were entitled to the payment of gratuity because of their length of service. The Act, therefore, operated in a restricted sphere in contradistinction with the Industrial Disputes Act which is a broader enactment in the sense that it takes into consideration the industrial disputes of all kinds including those who are the workmen even for a short duration. It will be seen that the difference can be noted because of the peculiar provisions where a workman merely having worked for 240 days in a year is clothed with some rights in total contradistinction to the Payment of Gratuity Act, where such a person may not be entitled to any rights. It was, therefore, essential to introduce the concept of average pay viz. Section 2(aaa) of the Industrial Disputes Act; whereas, such a provision was not necessary and is, therefore, not to be found in the Payment of Gratuity Act. However, merely, because a concept of average pay is to be found in the Industrial Disputes Act, the principle as to how the average pay for a day or as the case may be for 15 days to be arrived at would be common for both the Acts. In this behalf, what is to be noted predominantly is that the words' used are 15 days' average pay and not wages for half month or half monthly wages. In both the Acts, this phraseology of 15 days' wages is common. Once there is a common concept of 15 days' wages, then necessarily for calculating 15 days' wages, it would be essential to first arrive at one day's wages and to multiply the same by 15. The Apex Court in Jeewanalal's case, cited (supra), has specifically held that for arriving at the wages for a day, it would be necessary to divide the monthly wages by 26 and not by 30. The concept of 15 days' wages being common in both the enactments, what applies to the Payment of Gratuity Act would also apply to the Industrial Disputes Act and more particularly to Section 25-F. The learned Counsel for the petitioner- management Mr. Balasubramanian also invited my attention to some earlier Supreme Court decisions, where the calculation made by using a divider of 30 days was approved. However, that law will clearly not be applicable in view of Jeewanlal's case, cited (supra). This is apart from the fact that in those cases, the present question has not fallen for consideration. Some support was tried to be drawn from a Division Bench decision of this Court reported in (1968-I-LLJ-89) (India Hume Pipe Company Ltd. v. Palaniswami K.) wherein the judgment of the learned single Judge of this Court was confirmed. I am afraid, the judgment is of no assistance for revolving the present controversy. There, though the wages were determined per diem, but that, as a matter of practice, the workmen were paid once every fortnight. The Court held that under such circumstances, the residual clause viz., Section 2(aaa) did not apply and the average pay would really be equivalent to the daily wage of the worker. Such is not the controversy here. The decision is, therefore, not applicable to the present case. It will have, therefore, to be held that for arriving at the 15 days' average pay, the first one day's average pay would have to be arrived at and that can be done by dividing and that has to be done by first arriving at an average monthly pay which shall be divided by 26 and not by 30. There is no dispute that the present employee was a monthly employee and the management has faulted in merely dividing his average monthly pay by 2 and then multiplying it by the number of years i.e. 22. In the present case, there has been a short payment of retrenchment compensation as contemplated by Section 25-F(b).
13. However, the question is whether this plea can be allowed to be raised at this rate, at this stage and further the relief to be granted to the worker. The learned Counsel appearing for the management has relied on a few cases, (Bharat Singh v. State of Haryana); (Union of India v. Surjit Singh); (Chander Kali v. Jagdish Singh) and AIR 1975 Gauhati 76 (Haraballav v. Mohodar). The first decision , cited (supra), is regarding the pleadings in the writ petition. It is observed by the Supreme Court therein:
"In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."
14. The other reasonings are in respect of the pleadings in the civil proceedings and are, therefore, of no assistance to us in this case. There can be no doubt that such a plea was not raised specifically. However, we find a plea in the counter of the W.M.P. that the calculations of the backwages were not correctly made. In this behalf, we also find a judgment reported in (Workmen of English Electric Company of India Ltd., Madras v. Presiding Officer) (1990- I-LLJ-344) (SC), wherein in a labour dispute, the High Court found that the Union had set up a blatantly false case. It also found that because of the amendment made to the Claim Petition and the inconsistency that had crept in, ultimately view was taken that the Tribunal's judgment was vitiated. The Supreme Court observed in paragraph 8 at p. 347:
"We are of the view that in the facts and circumstances appearing on the record it was not appropriate for the Division Bench to dismiss the claim of the workmen altogether. While it is a fact that the workmen had made tall claims which they had failed to substantiate, it was for the Tribunal and the High Court to appreciate the material on the record and decide as to which part of the claim was tenable."
15. From this, the learned Counsel for the respondent Mr. Prasad says that it is for the High Court to correct a mistake committed by the Tribunal, even if the matter has not been raised by the worker anywhere and considered by the Tribunal. Mr. Prasad has also relied upon two judgments of the Supreme Court, reported in (Indian Cable Co, v. Workmen) and (Management of the Northern Railway Co-operative Credit Society Ltd., Jodhpur v. Industrial Tribunal, Rajasthan, Jaipur) . He invites my attention to the observations made in paragraph 16 in the reported decision in (supra) which are to the following effect:
"The rights of parties like the respondents before us even in labour adjudication to support the decision of the Tribunal on the grounds which were not accepted by the Tribunal or on other grounds which may not have been taken note of by the Tribunal has been recognised by this Court in Management of Northern Rly. Co-operative Society Ltd. v. Industrial Tribunal, Rajasthan, (supra). In fact, this decision had to deal with an appeal filed by a Co-op. Society against the Award of the Tribunal setting aside the order passed by the Society removing from its service an employee. This Court permitted the Union concerned, which was respondent in the appeal, to support the Award of the Tribunal, directing reinstatement of the employee on grounds which had not been accepted by the Tribunal and also on ground which had not been taken notice of by the Tribunal. Similarly, in J.K. Synthetics Ltd. v. J.K. Synthetics Mazdoor Union, (1971-II-LLJ-552); this Court permitted the Union, which was the respondent in the appeal, to support the decision of the Industrial Tribunal on a method of computation regarding bonus which was not adopted by the Tribunal. Though the management-appellant therein challenged the right of the union to support the award on other grounds without filing an appeal, that contention was rejected by this Court as follows...."
Mr. Prasad, learned Counsel appearing for the second respondent, also relied upon a decision of the Madras High Court, reported in (1983-II-LLJ-232) (Mad-DB) (Workmen, Employed in Engine Valves Limited v. Engine Valves Limited) to suggest that the management could not be heard to plead that a statutory benefit should not be extended to an affected workman merely on the ground of absence of pleadings."
16. It will be seen that though there is a definite injunction against the Court not to entertain the questions which are specifically not raised, the Apex Court has permitted to raise certain questions which were directly covered by the provisions particularly in this beneficial legislation meant for the amelioration of the labour. It has already been pointed out that, though not specifically raised, the incorrect calculation of the backwages, has certainly been raised before this Court in a counter to the W.M.P. Considering the overall material, therefore, I am of the opinion that the worker has undoubtedly raised the question of incorrect calculation and in that, the worker would show to this Court that the calculation is not as per law. It is, therefore, clear that while showing that the calculation was not correctly arrived at and while supporting the Tribunal's order, the second respondent could raise the above referred argument that the fifteen days of average period was not properly calculated by using the divider of 26. It is, therefore, clear that though the reasoning of the Tribunal was incorrect for reaching the conclusion that short payment was made, the said conclusion can still be upheld because of the interpretation of Section 25-F(b) of the Industrial Disputes Act.
17. The learned Counsel for the petitioner, however, says that this would cause hardship to the petitioner inasmuch as the Management had no opportunity to show its bona fides by making good the short payment immediately after it was shown. He submits that had the Claim Statement been specific, the management could have shown its bona fides by making good the short payment, as in this case, the payment is short by an insignificant amount. In this behalf, he had relied upon a decision of the Bombay High Court, reported in (Bombay Film Laboratory Ltd. v. L. G. Vasule) (1998-I-LLJ-208), wherein the learned single Judge has held the decision in Trade Wings Ltd. v. Prabhakar Dattaram Phodkar of Bombay, (supra), to be binding on himself and has noted that immediately after showing the shortfall in the amounts of retrenchment, the amount was made good by the management by depositing the same in the Labour Court. The learned Judge also found that this action was found by the Labour Court to be bonafide. The learned Judge then relying on the decision in 1981 (1) LLN 636 (Balmer Lawrie and Company Ltd. v. Waman B. More) came to the conclusion that if there is a bona fide mistake either of fact or law, pertaining to the mandatory requirement of the statute, then an employer who rectifies the mistake at the earliest available opportunity and deposits in Court the amount of shortfall, would be deemed to have substantially complied with the provisions of the statute. The learned single Judge, therefore, did not find fault with the management and held that there was no fault on the part of it in making a short payment. The learned Judge also noted that the payments were made much before the judgment in Trade Wings' case, cited supra, came on the legal scene and in view of the difference in the phraseology in the Payment of Gratuity Act in lieu of Section 4(2), and Section 25-F as also Section 2(aaa) or the Industrial Disputes Act, it could not be said that the management had acted despotically. The learned Judge also held that the shortfall was not on account of any deliberate intention on the part of the employer, but on account of a doubtful legal situation which arose on account of the judgment in Trade Wings' case, cited supra and, therefore, the situation fell within the principles laid down in Balmer Lawrie's case cited supra and, therefore, the petitioner-employer could not be penalised for having unwittingly trod on the toes of the law. Applying the principles of Balmer Lawrie's case, cited supra, the learned Judge in the abovementioned case allowed the writ petition. The learned Counsel says that, had such a situation been pointed out way back when the dispute arose, the management could have shown its bona fide by depositing the amount of shortfall. According to the learned Counsel, therefore, though there is a technical shortfall in the payment, the opportunity to make good that shortfall was throughout absent and as such now the management should not be burdened with the total amount of backwages. It is pointed out by the learned Counsel at this juncture that during all these years, the worker has been paid Rs. 30,000/- towards his backwages and from 1994 till the date he would have retired, he has been paid Rs. 2,000/- per month as per the order of this Court which has been referred to earlier.
18. There can be no dispute that all these years, the worker has not worked. The management had no opportunity to show its bona fides as the interpretation of Section 25-F(b) for calculating the fifteen days' pay was not on the legal scenario. Under such circumstances, though the worker is permitted to raise a legal plea regarding the incorrect calculation of fifteen days' pay, it would not be proper to order the full backwages to the worker. The reinstatement is out of question now, since the worker had already reached the age of supernanuation. Since the substantial part of the backwages has already been paid to the worker, it would be better to restrict his backwages to the amount which has already been paid to him. The Court is mindful of the fact that had the petition been allowed because of the faulty approach on the part of the Tribunal, the worker would have been required to return all the backwages. That will not be the situation now as the backwages ordered in his favour would be restricted to the backwages already paid to him. In short, the writ petition filed by the management, challenging the order of the Labour Court is disposed of. However, the award granting the reinstatement and full backwages is modified by restricting the backwages to the amount which has already been paid to him by the interim orders passed by this Court during the pendency of this writ petition. With this observation, the writ petition is disposed of. No costs. W.M.P. Nos. 34398 of 1993, 7501 and 7502 of 1994 and 20283 of 1998 are dismissed.