KRISHNA BHADUR versus M/S. PURNA THEATRE AND ORS.

Citation: [2004] SUPP. 3 S.C.R. 833 · Decided: 25-08-2004 · Supreme Court of India · Bench: N. SANTOSH HEGDE · Disposal: Appeal(s) allowed

Judgment (excerpt)

KRISHNA BHADUR 
v. 
MIS. PURNA THEATRE AND ORS. 
AUGUST 25, 2004 
[N. SANTOSH HEGDE AND S.B. SINHA, JJ.] 
Labour Law: 
Industrial Disputes Act, 1947: 
Section 25F(b)-Retrenchment of workman-Nature of-Held: 
Retrenchment is imperative in character-Any contravention of S. 25F(b) 
would render retrenchment void ab initio. 
Evidence Act, 1872: 
Section 115-Estoppel and waiver-Distinction between-Held: 
Estoppel is not a cause of action-It is a rule of evidence-But waiver is 
contractual in nature and may constitute a cause of action-Burden of 
establishing waiver lies on the party pleading the same. 
The appellant was appointed in the post of Messenger-cum-
Bearer in the establishment of the respondent and was subsequently 
confirmed in the said post. The appellant was found guilty in a 
disciplinary proceeding initiated against him and was dismissed from 
service. 
A 
B 
c 
D 
E 
F 
The Industrial Tribunal set aside the order of dismissal with full 
back wages and compensation. The appellant was permitted to join his 
duties but was retrenched within one month of his joining. The 
appellant was paid a certain amount as retrenchment compensation. G 
A trade union espoused the cause of the appellant on the ground 
of contravention of the legal requirements as contained in Section 
25F(b) of the Industrial Disputes Act, 1947. The Industrial Tribunal 
held that the appellant's retrenchment was illegal and ordered his 
reinstatement with all consequential benefits. A Single Judge dismissed H 
833 
834 
SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R. 
A the writ petition filed by the respondent. Before the Division Bench a 
plea of waiver as regards the substantial compliance of the requirements 
of law on the part of the appellant was raisecl for the first time. 
Accepting the said plea the Division Bench allowed the respondent's 
appeal. Hence the appeal. 
B 
c 
Allowing the appeal, the Court 
HELD: I. 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. [839-A-B[ 
2. A right can be waived by the party for whose benefit certain 
D 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 
E conduct. [839-C-D[ 
Bank of India v. O.P. Swarnakar, [2003[ 2 SCC 721, relied on. 
3.1. The provision of Section 25F(b) of the Industrial Disputes Act, 
F 1947 is imperative in character. [839-F) 
G 
3.2. The requirement to comply with the provision of Section 
25F(b) is mandatory before retrenchment of a workman is given effect 
to. In the event of any contravention of the said mandatory requirement 
the retrenchment wou.ld be rendered void ab initio. [840-A-Bl 
Workmen of Sudder Workshop of Jorhat Tea Co. Ltd. v. The 
Management, (1980) 2 LLJ 124, held inapplicable. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7251 of 
H 2001 
KRISHNA BAHADUR v.PURNA THEATRE (SINHA, J.] 
835 
From the Judgment and Order dated 13.10.99 of the Calcutta High A 
Court in Appeal No. 434 of 1996. 
Bijan Kumar Ghosh for the Appellant. 
Avijit Bhattacharjee for the Respondents. 
B 
The Judgment of the Court was delivered by 
S.B. SINHA, J : The workman is in appeal before us being aggrieved 
by and dissatisfied with the judgment and order dated 13.10.2000 passed C 
by the Division Bench of the High Court of Calcutta in Appeal No. 434 
of 1996. 
The case at hand has a chequered history. 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 D 
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 E 
1.5.1991, the appellant was 

Excerpt shown. Read the full judgment & AI analysis in Lexace.