D. Basu, J.
1. The Petitioner's case, in this petition under Article 226, is that owing to a diminution in the business of the Oriental Electrical and Engineering Co., of which the Petitioner company is the Managing Agent, the Petitioner, in June 1958, retrenched some 16 employees, including Respondents 3 to 17 (hereinafter referred to as 'the workmen'), after complying with the requirements of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'), and the workmen received final settlement of their dues under receipts granted in Ex. A series. Notwithstanding this fact and the further fact that two of the workmen, namely, Respondents 4 and 5 accepted permanent employment under another employer, the State Government, in December, 1958, referred the industrial dispute alleged to have arisen between the petitioner and the workmen for adjudication to the Fifth Industrial Tribunal (Respondent No. 1). The Tribunal gave its award (Ex. E) on the 27th June, 1963, holding that:
(a) Instead of P.B. Mukherjee (Respondent No. 13), one A. Das should have been retrenched; so that Mukherjee should be reinstated with 50% of his ordinary wages for the period of his forced unemployment;
(b) The retrenchment of all the other workmen was justified; nevertheless, they should be paid another month's wages in addition to the amounts already paid by the petitioner.
2. The Award is challenged by the Petitioner, on both the points, as being vitiated by want of jurisdiction and error apparent on the face of the record.
(a) As regards P.B. Mukherjee, the Tribunal's finding is that Sri Das Gupta, being junior to Mukherjee, should have been retrenched instead of Mukherjee, according to the principle 'last come, first go', embodied in Section 25G of the Act, as follows: '25G. Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.'
3. The petitioner's case is that these two workmen do not belong to 'the same category of workmen' as required by the section and that, accordingly, the Award is vitiated by an error of law apparent on the face of the record in view of the Tribunal's finding that Mukherjee was an accounts clerk and Das Gupta was a store-keeper. The Tribunal, however, took the view that both posts involved clerical work and neither involved any technical skill or training, so as to constitute a separate category. This finding, instead of being undermined, is strengthened by the averment in para. 11 of the petition that on the eve of the retrenchment Mukherjee was employed as 'stock clerk' and Das Gupta as 'store-keeper',
4. The petitioner has failed to produce any materials from which it could be inferred that the man working as stock clerk could not act as 'store-keeper* or vice versa. The difference, if any, is only in nomenclature. As observed by the Supreme Court in J.K. Iron and Steel Co. v. Its Workmen, : (1960)IILLJ64SC , they 'are parts of one whole department'. The Supreme Court, in that case, refused to hold that the Workshop Department and the Punch and Pressing Department of a factory belonged to two different categories. In the instant case, the function of both the stock-keeper and the store-keeper is clerical and neither requires any technical skill or training, as the Tribunal has found. In that view, the following observations of the Supreme Court in the cited case, answer the petitioner's contention on the present point:
'Clerks are not specifically trained to handle only a particular kind of work. Their work is easily convertible and one can replace another without any dislocation in the department'.
5. In the instant case, it is not the petitioner's case that Das Gupta is more efficient or reliable than Mukherjee to justify his retention as an exception to the ordinary rule of 'last come, first go'. Hence, the contention must fail in view of my finding, that the two employees belong to the same category so as to attract Section 25G.
(b) On the second point, the Tribunal has found that though the petitioner retrenched the workmen with effect from the 21st June, 1958, the compensation required to be paid under Section 25F(c) of the Act was not paid until the last part of July, 1958. In view of this, the Tribunal held that, the payment of the compensation being a statutory condition precedent for retrenchment, the workmen were entitled to be reinstated after annulling the retrenchment. Nevertheless, in view of the circumstances of the case, the Tribunal treated the workmen as retrenched from the date of actual payment of the statutory compensation and directed that they (excepting Mukherjee) should be paid their wages for the intervening one month. This direction of the Tribunal is assailed by the petitioner on several grounds.
6. It is contended that having held that the retrenchment was justified in the facts of the case, the Tribunal had no further jurisdiction to hold that the workmen were still entitled to any relief, because the reference was only to determine 'whether the retrenchment was justified'. This, however, is not correct inasmuch as the terms of reference, as reproduced in the Award included a rider, namely, 'to what relief are they entitled'?
7. Besides, the word 'justified' in this context, means 'justified in law'. It has been held by the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha, : (1960)ILLJ251SC , that the requirement of Section 25F(2) of the Act is a condition precedent to the retrenchment and that where the compensation money has not been paid prior to the time of retrenchment, the retrenchment becomes invalid and inoperative. To hold, therefore, that a retrenchment of staff was justified in view of the diminution of work in the establishment does not bring to an end the jurisdiction o the Tribunal; it has still to see whether before ordering retrenchment, the conditions of the statute have been complied with. This, the Tribunal has done and its finding is that the payment having been made one month later than the time of retrenchment (which, being a finding of fact, is unassailable in the instant proceeding), the retrenchment, though justified by the diminution of work, is not justified in law, and that the workmen were entitled to be reinstated.
8. There has thus been no error of jurisdiction or error of law.
9. But, instead of directing reinstatement, the Tribunal has directed payment of the wages between the date of retrenchment and the date of the payment. The petitioner does not and cannot, in view of the diminution of its work, make any grievance of the fact that the Tribunal has directed payment of compensation instead of reinstatement. The contention of the petitioner is that enough has been paid and that the workmen are not entitled to any additional payment.
10. This contention has also no substance inasmuch as the additional payment has been ordered by the Tribunal in lieu of reinstatement which would have logically followed from the finding that Section 25F(b) had not been duly complied with. It has been held by the Supreme Court in Assam Oil Co. v. Its Workmen, : (1960)ILLJ587SC that where reinstatement would not be fair to either party, the Tribunal would have jurisdiction to direct payment of compensation. If, in view of the diminution in the business of the petitioner, the Tribunal has instead of directing reinstatement, ordered the petitioner to pay wages for the month by which the payment of the statutory compensation has been. delayed, there has been no error of law or of jurisdiction, and the petitioner should rather be thankful to the Tribunal, for, the Tribunal would have been justified in assessing a much heavier sum as compensation in lieu of retrenchment.
11. It was finally urged on behalf of the petitioner that since the workmen had received the sums paid by the petitioner on acknowledgment of receipt in final settlement, they were not entitled to any further payment or to urge that Section 25F(b) had not been duly complied with. The simple answer to this is that there cannot be any estoppel against a statute, particularly when the non-compliance with the statute goes to the root of the thing, as the Supreme Court has held. The Tribunal is also right in its view that the rule of estoppel or waiver cannot be applied against retrenched workmen who had no freedom to refuse the payment in view of their financial position caused by the retrenchment. This contention must, therefore, be rejected.
12. In the result, this petition fails and the rule is discharged with costs.
13. The operation of this order shall be stayed for a period of four weeks from this date.