JUDGMENT

KRISHNA IYER, J.:— These two appeals, turning on the validity of the retrenchment of 23 workmen way back in 1966, are amenable to common disposal. Mr. Phadke, appearing for the Management, argued straight to the point, so did Shri Mridul, with the result that we could get the hang of the case without much wrestling with time or getting paper-logged. Since, in substance, we are inclined to leave undisturbed the Award of the Industrial Tribunal, affirmed, as it were, by the High Court, both these appeals will be given short shrift with brief reasons.

2. The facts, to the extent necessary to appreciate the issues canvassed, are brief. The Management of a tea plantation by name Jorehaut Tea Co. Ltd., retrenched 23 workmen, 16 of whom were paid retrenchment compensation allegedly in terms of Section 25F of the Industrial Disputes Act (for short, the Act) and in the order of last come, first go, while the services of the other seven were terminated, although on payment of retrenchment compensation, allegedly in breach of S. 25G of the Act, i. e. out of turn. The dispute that was raised was decided by the Tribunal who upheld the validity of the retrenchment of the 16 but set aside the termination of the other 7. Consequently it directed their reinstatement with some back wages. The Award granted the following relief :

In respect of the workmen, viz., Sri Bhogeswar Saikia, Sri Nandeswar Bora, Sri Gunai Dora, Sri Premadhar Sarma, Sri Alimuddin Ahmed, Sri Deven Sarma and Shri Harlalal Biswas whose retrenchment has been found to be not justified, they are entitled to reinstatement with continuity of service. These workers have not come forward to say that they remained unemployed from the date of their retrenchment. In the circumstances of the case, I think they may be given wages at half the rate from the date of retrenchment till the date of publication of the award in the Gazette.

3. We may first dispose of the workers appeal. In all, 23 persons were retrenched. In respect of 16 the rule of last come, first go was applied. Thus homage was paid to S. 25G of the Act. But then, the workmen in their appeal, contended before us that S. 25F had been breached and, therefore, the termination was bad in law. The Managements case is that, as a fact, all or most of them had been reinstated when fresh vacancies had arisen, although neither party is able to assert with certainty this case of reinstatement. That apart, if there be noncompliance with S. 25F, the law is plain that the retrenchment is bad. However, when probed further as to how S. 25F had been violated, Shri Mridul argued that the amount paid by way of retrenchment compensation envisaged in S. 25F fell short of what was legally due and hence there was non-compliance. Under more searching interrogation, Shri Mridul stated that the compensation had been computed on the basis of wages previously paid and in derogation of the Wage Board Award which had been implemented by the Management with effect from 1-4-1966. The retrenchment was on November 5, 1966 i. e. months after April 1, 1966. Therefore, the revised pay-scales as per the Wage Board Award should have been adopted in calculating the retrenchment compensation. This spinal flaw rendered the tender of compensation insufficient and, therefore, the retrenchment itself was invalid. Maybe, there is apparent force in this contention. But Shri Phadke countered it by saying that it was not open to the workmen to spring a surprise on the Management especially when the question was one of fact. He urged that before the Tribunal no plea based on the Wage Board Award was made and it was quite possible that the Management would have adequately met the contention if such a plea had been raised. The fact is that before the Tribunal the contention pressed before us was neither pleaded nor proved. There is no hint of it in the Award. In the High Court this new plea based on the facts was not permitted. Had there been some foundation laid at l