JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Gogia, learned advocate for the petitioner, and Mr. Shukla, learned advocate for the respondent workman. 2. In this petition, the petitioner has challenged award dated 26.12.2011 passed by the learned Labour Court, Jamnagar in Reference (LCJ) No. 229 of 2003 whereby the learned Labour Court held and declared that the retrenchment of the claimant - workman effected by the petitioner was effected in violation of the statutory provisions and therefore, the retrenchment stands vitiated and on such conclusion and declaration, the learned Labour Court directed the petitioner to reinstate the respondent with continuity of service and 10% backwages. 3. So far as the relevant facts are concerned, it has emerged from the record and the submissions by learned advocates for the contesting parties that the claimant, i.e. present respondent, raised an industrial dispute against present petitioner on the allegation that her service was illegally terminated in August 2003 without following procedure prescribed by law and without payment of retrenchment compensation and without opportunity of hearing. The appropriate government referred the dispute to the learned Labour Court at Jamnagar. The said dispute came to be registered as Reference (LCJ) No. 229 of 2003. 3.1 Before the learned Labour Court, the claimant filed statement of claim and alleged that she was working as Sevika in Kinder-garden (Balmandir) which was run in the name and style of K.N. Kumar Mandir by the petitioner trust, i.e. Vidyut Chetak Mandal and that she was in service with the said Balmandir since 18.6.2008 and at that time her salary was Rs. 925/-. The claimant also alleged that earlier her service was illegally terminated on 10.6.2003 and at that time she had raised dispute which was registered in the office of the Labour Commissioner as Cell Case No. 137 of 2003. She also claimed that during the conciliation proceedings, a settlement was arrived at and she was reinstated and thereafter, she had resumed duty with the said Balmandir. According to the claimant's allegation, subsequently, the management of the Balmandir again terminated her service in August 2003 without following any procedure prescribed by law. She also alleged that while she was in service and at the relevant time, when her service was terminated, the respondent was not making payment of salary as per the Minimum Wages Act and shortfall in wages was paid subsequently, i.e. after her service was terminated. She also alleged that while she was in service and at the relevant time, when her service was terminated, the respondent was not making payment of salary as per the Minimum Wages Act and shortfall in wages was paid subsequently, i.e. after her service was terminated. On such allegation, the claimant demanded that she should be reinstated with consequential benefits. 3.2 The petitioner, i.e. original opponent, which is a trust, opposed the reference by filing written statement, wherein the petitioner trust denied the allegation by the claimant. The petitioner trust claimed that the claimant had not worked for 240 days and that the difference of wages as per the Minimum Wages Act was paid to the claimant on 1.3.2004 and that at the time when the service of the petitioner was terminated on 27.8.2003, the legal dues required to be paid to the claimant including the retrenchment compensation, gratuity, etc. were forwarded to the claimant at her residential addressed by Registered Post, however, the claimant had refused the amount. According to the petitioner trust, the petitioner had complied the conditions prescribed under Section 25F for legal and valid retrenchment and that, therefore, the reference should be rejected. During the proceedings before the learned Labour Court, evidence was recorded after the stage of pleadings was concluded. The claimant had filed affidavit in lieu of chief examination (Exh. 10) and thereafter she was subjected to cross-examination by the petitioner. The claimant also placed on record certain documents below list of documents. Subsequently, the deposition of the witness of the petitioner trust was also recorded. The petitioner trust also placed on record certain documents including Resolution No. 105 and copy of the cheque and forwarding letter under which the retrenchment compensation and other dues were allegedly forwarded to the claimant on 27.8.2003. 3.3 After the stage of evidence was concluded, the learned Labour Court heard the submissions by learned advocates for the contesting parties and thereafter the learned Labour Court considered the material on record and rival submissions and having reached to the conclusion that the termination of the claimant was in violation of the statutory provisions, the learned Labour Court passed the impugned award and directed the petitioner to reinstate the claimant with continuity of service and 10% backwages. 3.4 While assailing the award passed by the learned Labour Court, Mr. 3.4 While assailing the award passed by the learned Labour Court, Mr. Gogia, learned advocate for the petitioner repeatedly submitted and emphasized that K.N. Kumar Mandir (Balmandir) is closed down, however, the learned Labour Court did not consider the said aspect and in view of the closure of the Balmandir, the direction to reinstate the claimant is unjustified and impracticable and having regard to the fact that the Balmandir where the claimant was working, is closed down, the direction to reinstate the claimant deserves to be set aside. 4. On this count, before proceeding further, it is relevant to mention that the discussion which follows hereafter in present order will bring out that the said submission and statement by the learned advocate for the petitioner is not borne out from the record and, actually, there is no whisper about alleged closure of the said Balmandir in the written statement filed by the petitioner trust before the learned Labour Court or in the deposition by the witness of the petitioner trust who was examined before the learned Labour Court and even in the memo of the petition. The said submission is made by the learned advocate for the petitioner without any reference of such factual aspect anywhere in the record and without any basis in the pleadings and/or any foundation and/or in absence of evidence. The said oral submission without any basis in the record, was made, in view of this Court, only with a view to misdirect the Court with regard to the order directing the petitioner to reinstate the claimant and to persuade the Court to hold that in view of closure of the institute/Balmandir, the order directing reinstatement of the claimant is not justified and deserves to be set aside. However, the said oral submission by learned advocate for the petitioner is not borne out from the pleadings and/or record and to say the least, is not justified. When the Court noticed above mentioned aspect and pointed out the said aspect to the learned counsel that the submission which are made are contrary to and/or not borne out from the record, learned advocate for the petitioner claimed that the transport/bus section of the Balmandir was discontinued, the petitioner had nothing but apology to offer in reply. When the Court noticed above mentioned aspect and pointed out the said aspect to the learned counsel that the submission which are made are contrary to and/or not borne out from the record, learned advocate for the petitioner claimed that the transport/bus section of the Balmandir was discontinued, the petitioner had nothing but apology to offer in reply. 4.1 Besides the said submission, learned advocate for the petitioner trust submitted that the learned Labour Court has proceeded on the premise that the claimant was retrenched on 22.8.2003, however, the claimant had no where claimed in her pleadings or evidence that her service was terminated on 22.8.2003. He submitted that the claimant's service was terminated on 27.8.2003 and the amount payable towards retrenchment compensation and other legal dues was forwarded to the claimant by registered post on 27.8.2003 and that therefore, there was sufficient compliance of the condition prescribed under Section 25-F of the Act, however, the learned Labour Court found fault with the retrenchment procedure followed by the petitioner and thereby, set aside the termination which is unjustified and contrary to the evidence on record and that therefore, the said conclusion and decision by the learned Labour Court is required to be set aside. Mr. Gogia, learned counsel, alleged that the claimant had refused to accept the legal dues including the retrenchment compensation, which was forwarded by the registered post. 5. Per contra, Mr. Shukla, learned advocate for the respondent claimant, submitted that the claim raised before this Court viz. that the Balmandir is closed down is incorrect and such claim was never raised before the learned Labour Court and any evidence was not led before the learned Labour Court to establish that the Balmandir is closed down after the service of the claimant was terminated. He also submitted that the retrenchment compensation was not paid at the time of retrenchment, but it was subsequently, forwarded to the respondent claimant on 27.8.2003 and that therefore, the learned Labour Court is right and justified in holding that the retrenchment is defective. 6. I have heard submissions by learned advocates for the petitioner and the respondent. I have also considered the material on record and the award impugned in present petition. 7. 6. I have heard submissions by learned advocates for the petitioner and the respondent. I have also considered the material on record and the award impugned in present petition. 7. As mentioned earlier, the substantive and fundamental and primary ground on which the petitioner sought to assail the award directing the petitioner to reinstate the workman is not borne out from the record. As mentioned earlier, learned advocate for the petitioner repeatedly submitted that the Balmandir where the claimant was engaged was closed down and that therefore, the direction to reinstate the claimant is unjustified. However, on examination of the record, it has emerged that such plea was not raised before the learned Labour Court in the written statement and even the witness examined by the petitioner trust never mentioned before the learned Labour Court that the Balmandir is closed down. Even in the petition, there is not a word to the effect that the Balmandir itself, i.e. the institute itself, is closed down. All that is mentioned and that too very conveniently is that the transport/bus section is closed down. 7.1 From the record, it has also emerged that according to the petitioner's admission, the difference of wages was forwarded to the claimant on 1. 9.2003. The said admission of the petitioner and the documents, which were placed on record before the learned Labour Court, establish the fact that the wage which was paid to the respondent claimant at the time when her service was terminated was less than the wage legally payable to the claimant and the shortfall was made good about 4-5 days after the service of the petitioner was terminated. The said fact would translate into the position that even the retrenchment compensation (allegedly forwarded to the claimant on 27.8.2003) was calculated on the basis of short paid salary and that therefore, the calculation of the retrenchment compensation forwarded to the petitioner was not in accordance with the formula prescribed under Section 25-F of the Act. The said shortfall in calculation of the retrenchment compensation would render the retrenchment defective, inasmuch as the alleged offer of compensation amount would not be in consonance and in accordance with the formula prescribed under Section 25-F of the Act. The said Section 25-F imposes obligation on the employer to pay retrenchment compensation (at the time of retrenchment) strictly in accordance with the formula and procedure prescribed under the Act. The said Section 25-F imposes obligation on the employer to pay retrenchment compensation (at the time of retrenchment) strictly in accordance with the formula and procedure prescribed under the Act. Thus, the amount which must be paid to the employee at the time of his retrenchment should be calculated in accordance with the formula and any shortfall in the compensation amount would vitiate the retrenchment. 8. From the material on record, it has emerged that there is no dispute as to the fact that the claimant was in service with the petitioner trust since about 3 years before her service came to be terminated. In this background, learned Labour Court has also recorded finding of fact that the claimant had worked for more than 240 days. The very fact that the petitioner trust itself had calculated the compensation amount by treating the claimant's service for 3 years and had allegedly forwarded the said compensation amount to the claimant establishes that the claimant had worked with the petitioner trust for 3 years and had worked for more than 240 days. Thus, the entitlement for compensation and other legal dues is established and there is no dispute so far as the said factual aspect i.e. respondent's entitlement is concerned. 9. On reading the award, it becomes clear that the learned Labour Court has found the respondent's retrenchment is defective on the ground that the work for which the claimant was engaged was continued and the petitioner's claim that there was no work for the claimant was not established. On the contrary, it was established that the said work continued when the service of the claimant was terminated. The learned Labour Court also held that the petitioner trust committed breach of Section 25-G at the time when the petitioner's was discontinued from service and that the payment of difference of wages after the termination was effected also established that the amount payable towards retrenchment compensation in accordance with Section 25-F was not paid in accordance with the formula and but there was shortfall in the amount of compensation. 10. 10. From the discussion in the award, it emerges that the learned Labour Court has examined the evidence available on record and after due analysis and appreciation of evidence, the learned Labour Court found that the petitioner's action is in violation of Section 25-F and Section 25-G of the Act and after having recorded such finding of fact with supporting reasons, the learned Labour Court passed the impugned award. From the award and from the material on record, it emerges that the findings of fact recorded by the learned Labour Court are supported by cogent and satisfactory reasons which, in turn, are supported by the evidence available on record. In this view of the matter, the findings of fact recorded by the learned Labour Court cannot be said to be perverse. Under the circumstances, the findings, conclusion and direction by the learned Labour Court directing the petitioner to reinstate the claimant cannot be faulted. The learned Labour Court has also awarded 10% backwages. In the facts and circumstance of present case, this Court does not find any fault or any strong reason or justification to interfere with the direction to pay 10% backwages, more so when the Court has recorded finding of fact about breach of Section 25-G and Section 25-H. Besides the finding about breach of Section 25-F of the Act. Therefore, the directions and the award are not interfered with and are hereby confirmed and the petition is not accepted. 10.1 Before concluding, it appears appropriate to mention that during the submissions, the learned counsel for the petitioner, after taking instructions from the petitioner trust, submitted that the petitioner trust is ready and willing to pay lump sum compensation to the tune of Rs. 1.5 Lakhs to the respondent claimant in lieu of the direction to reinstate the respondent claimant with 10% backwages. However, learned advocate for the respondent claimant, on instructions, submitted that the claimant seeks reinstatement and not lump sum compensation. 10.2 In this view of the matter, it is clarified that if the respondent claimant by her own volition wants to accept the offer by the petitioner trust, then, it would be open to the respondent claimant to accept the said offer towards full and final settlement of the matter. 10.2 In this view of the matter, it is clarified that if the respondent claimant by her own volition wants to accept the offer by the petitioner trust, then, it would be open to the respondent claimant to accept the said offer towards full and final settlement of the matter. If the respondent claimant does not convey her acceptance of the said offer to the petitioner, then, the petitioner shall comply the directions passed by the learned Labour Court expeditiously and preferably within one week after receipt of the order. With aforesaid observations and directions, present petition stands disposed of. Rule is made absolute to the aforesaid extent.