Himachal Pradesh Gazette, No. 92, 02 August 2023

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राजपत्र, हिमाचल प्रदेश हिमाचल प्रदेश राज्य शासन द्वारा प्रकाशित बुधवार, 02 अगस्त, 2023/11 श्रावण, 1945

हिमाचल प्रदेश सरकार

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Dated the 6th May, 2023

No. Shram (A) 3-2/2023 (Awards) L.C. Shimla.—In exercise of the powers vested under section 17 (1) of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to 92—राजपत्र/2023-02-08-2023 (4715)4716 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 order the publication of awards of the following cases announced by the Presiding Judge, Labour Court, Shimla on the website of the Printing & Stationery Department, Himachal Pradesh i.e. "e-Gazette" :—

By order, AKSHAY SOOD, Secretary (Lab. & Emp.).

__________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 197 of 2022

Instituted on : 05-12-2022

Decided on : 01-03-2023

Rupinder Singh s/o Late Shri jai Dev Singh, r/o Mohalla Chekreda, Nahan, District Sirmour, (H.P.)

.

VERSUS

The Occupier/Factory Manager, M/s Ruchira Paper Mill, Kala Amb, Trilokpur, District . .Respondent. Sirmaur, H.P.

Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner : Shri Veerdaman Singh, Advocate

For respondent : Shri Sanjay Pandit, Advocate

AWARD4719 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 The following reference petition has been, received from the Appropriate Government vide notification dated 04.11.2022, under section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to be as the Act), for its legal ajudication:

"Whether the demand of Shri Rupinder Singh s/o late Shri jai Dev Singh, r/o Mohalla

Chekreda, Nahan, District Sirmour, H.P. for his re-instatement in service before the

management of M/s Ruchira Paper Mill, Kala Amb, Trilokpur, District Sirmaur, H.P.

after receiving full & final amount is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management and if not, its effect?"

2. On receipt of the said reference from the Appropriate Government, notices were issued to the concerned parties in pursuance to which Shri Veerdaman Singh, Advocate has appeared on behalf of the petitioner whereas Shri Sanjay Pandit, Advocate had appeared for respondent.

3. To the fore Shri Rupinder Singh petitioner has stated that the demand raised by him vide demand notice regarding the re-instatement in service before the management of respondent after receiving full and final amount, has been referred to this Court as industrial dispute vide notification dated 4.11.2022. The said industrial dispute has been amicably resolved and settled between the parties as a result of which the respondent had agreed to pay lump-sum compensation of `60,000/- (Sixty Thousand). Out of which Rs. 50,000/- has been paid through cheque No. 189699 dated 19.01.2023 and remaining amount of Rs. 10,000/- has been paid to him in cash today in the Court and now nothing survive in the present reference petition. He has also placed on record copy of cheque (PA), copy of driving licence (PB), copy of Aadhar card (PD), copy of ESI card (PE), and copy of PAN card (PF). To this effect his statement recorded separately and placed on record.

4. Vide separate statement Rakesh Kumar, AGM of the respondent company has stated that the industrial dispute received from the government vide reference No. 197 of 2022 has been amicably settled between the parties to which the petitioner has been paid full and final settlement amount of `60,000/- (Sixty Thousand) out of which Rs. 50,000/- has been paid through cheque and Rs. 10,000/- has been paid in cash today in the Court. The statement made by the petitioner is acceptable to him. He has placed on record the copy of identity proof (PC).

5. Thus, keeping in view that attendant facts and circumstances of the case vis-a–vis perusal of the case record manifestly and conclusively goes to demonstrates that the Industrial Dispute raised from the side of the petitioner stood amicably resolved and finally compromised by the petitioner and he has been paid a sum of `60,000/- (Sixty Thousand) out of which Rs. 50,000/- has been paid through cheque No. 189699 dated 19.01.2023 and remaining amount of Rs. 10,000/- has been paid to him in cash as full and final settlement amount of the claim today in the Court. Therefore, the industrial dispute raised from the side of the petitioner arising out of reference No. 197 of 2022, stood amicably settled between the parties.

6. Since, the matter stood amicably resolved and settled between the parties by way of amicable settlement, therefore, nothing survives in the present industrial dispute. Consequently, the industrial dispute raised by the petitioner stood amicably settled to which the petitioner has been fully & finally compensated by paying `60,000/- (Sixty Thousand). The reference is answered accordingly and the award is passed as per the statements of both the parties as well as documentary proof placed on record i.e. copy of cheque (PA), copy of driving licence (PB), copy of identity proof (PC), copy of Aadhar card (PD), copy of ESI card (PE), and copy of PAN card (PF), which shall form the integral part and parcel of this award.

7. The reference is disposed off accordingly. Let a copy of this award be communicated to the appropriate government for publication in the official gazette. File, after completion, be consigned to records.

Announced : 01-03-2023

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 27 of 2021

Instituted on : 17-02-2021

Decided on : 01-03-2023

Gurmeet Kaur w/o Shri Sant Ram, r/o Village Plassi, P.O. Plass Kalan, Tehsil Nalagarh, . .Petitioner. District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 01.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal ajudication, as under:

"Whether the demand of Smt. Gurmeet Kaur w/o Shri Sant Ram, r/o Village Plassi,

P.O. Plass Kalan, Tehsil Nalagarh, District Solan, H.P., for her reinstatement in

service before the management i.e. the Occupier/Factory Manager, M/s Penguin

Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil

Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the

settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947

between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh

Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the

representatives of the workers union and after receiving full and final amount of Rs.

2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what

relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 20.07.2009 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner/claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company4722 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2021, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue No.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is ordered

to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO. 14723 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent,4724 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representagives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष4726 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 1. रमेश कुमार चंदेल 1. मुकेश कुमार 2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्यागपत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred the dispute

to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-section (3A)

of section 10A] or [an award [of a Labour Court, Tribunal or National Tribunal] which has

become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or National

Tribunal], as the case may be, records the opinion that they were so summoned

without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs,

successors or assigns in respect of the establishment to which the dispute

relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen, all

persons who were employed in the establishment or part of the establishment, as

the case may be, to which the dispute relates on the date of the dispute and all

persons who subsequently become employed in that establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have4728 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd. vs Pancham Singh Rawat and Another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in

its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/ petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present4731 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 28 of 2021

Instituted on : 17-02-2021

Decided on : 01-03-2023

Rita Devi w/o Shri Rajinder Kumar, r/o Village Mussewal, P.O. Rajpura, Tehsil Nalagarh, . .Petitioner. District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR

For the Respondent : Sh. Rajeev Sharma, Advocate4732 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 AWARD The following reference petition has been, received from the Appropriate Government vide notification dated 01.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal ajudication, as under:

"Whether the demand of Smt. Rita Devi w/o Shri Rajinder Kumar, r/o Village Mussewal, P.O. Rajpura, Tehsil Nalagarh, District Solan, H.P., for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 24.09.2007 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the

management of respondent company after submitting her resignation as per

settlement dated 20.02.2020 arrived at between the respondent management and

petitioner union, after receiving full and final amount of Rs. 2 Lakh as per

settlement, is improper and unjustified? If yes, what relief the petitioner is

entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present

. .OPR.

form, as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue No. 1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had4735 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid4736 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed4737 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्यागपत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार4738 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd. vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/ petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 29 of 2021

Instituted on : 17-02-2021

Decided on : 01-03-20234743 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Seema Devi w/o Shri Kishan Chand, r/o Village Kund (Kud), P.O. Harot, Tehsil Bangana, . .Petitioner. District Una, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 01.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal ajudication, as under:

"Whether the demand of Smt. Seema Devi w/o Shri Kishan Chand, r/o Village Kund (Kud) P.O. Harot, Tehsil Bangana, District Una, H.P., for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit-III) Village Sallewal, Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 18.10.2005 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue No. 1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained4747 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the4748 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--4749 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their4751 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd. vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave

even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having

appropriated the dues, thereafter sought to rake up the issue of the resignation being

under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 30 of 2021

Instituted on : 17-02-2021

Decided on : 01-03-2023

Shakuntla w/o Shri Rajinder Ram, VPO Tisiouta, Tehsil Vaishali, District Vaishali, Bihar.

. .Petitioner.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 01.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Smt. Shakuntla w/o Shri Rajinder Ram, VPO Tisiouta, Tehsil Vaishali, District Vaishali, Bihar, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 28.06.2005 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the4755 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is4756 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered4757 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an4758 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro Worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous4759 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की 4760 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were

so summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of

workmen, all persons who were employed in the establishment or part of

the establishment, as the case may be, to which the dispute relates on the

date of the dispute and all persons who subsequently become employed in

that establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the4762 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd. vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation

merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not

in dispute that the job of the appellant was transferable. The appellant was

transferred to Pinjore but refused to join the new station and instead made

representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the4765 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

__________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 32 of 2021

Instituted on : 17-02-2021

Decided on : 01-03-2023

Ajay Kumar s/o Shri Pyara Lal, r/o Village Mastanpura, P.O. Khillian Tehsil Nalagarh, . .Petitioner. District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 21.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Ajay Kumar s/o Shri Pyara Lal, r/o Village

Mastanpura, PO Khillian Tehsil Nalagarh, District Solan, H.P., for his reinstatement

in service before the management i.e. the Occupier/Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of November, 2013 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join4767 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 12.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J. C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro Worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the4770 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्याग-पत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have4773 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd. vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in

its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

__________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 33 of 2021

Instituted on : 17-02-2021

Decided on : 01-03-2023

Balbir Singh s/o Shri Natha Ram, r/o VPO Buraj, Tehsil Anandpur Sahib, District Ropar . .Petitioner. Punjab.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd. Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 21.01.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Balbir Singh s/o Shri Natha Ram, r/o VPO Buraj, Tehsil Anandpur Sahib, District Ropar Punjab, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 25.07.2007 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief4779 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no. 1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro Worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and4781 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against4782 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्यागपत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार4783 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs,

successors or assigns in respect of the establishment to which the dispute

relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the4785 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat And Another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forcd to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have

immediately approached some authority or his union or the Government labour

officer to say that he had never resigned but his resignation was taken forcibly or that

his signature was taken on blank papers. In spite of its correct appreciation of

evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/ petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal. 38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

__________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 34 of 2021

Instituted on : 17-02-2021

Decided on : 01-03-20234788 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Surjeet Kaur w/o Shri Ram, r/o Village Mussewal, P.O. Rajpura, Tehsil Nalagarh, District . .Petitioner. Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. Through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J. C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 21.01.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Smt. Surjeet Kaur w/o Shri Ram, r/o Village Mussewal, PO Rajpura, Tehsil Nalagarh, District Solan, HP, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 01.06.2005 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no. 1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained4792 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro Worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the4793 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः-- 4794 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्याग-पत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their4796 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave

even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the

respondent Management were appropriated by the appellant. The appellant having

appropriated the dues, thereafter sought to rake up the issue of the resignation being

under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 36 of 2021

Instituted on : 18-02-2021

Decided on : 01-03-2023

Karam Chand s/o Shri Sohan Lal, r/o Village Dhang Uperli, PO Plassi Kalan, Tehsil . .Petitioner. Nalagarh, District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. Through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 10.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Karam Chand s/o Shri Sohan Lal, r/o Village Dhang Uperli, P.O. Plassi Kalan, Tehsil Nalagarh, District Solan, H.P., for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 30.10.2013 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi4800 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two4802 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representagives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the4803 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro Worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers,4804 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ4805 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह है कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the4807 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation

merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not

in dispute that the job of the appellant was transferable. The appellant was

transferred to Pinjore but refused to join the new station and instead made

representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the4810 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 38 of 2021

Instituted on : 18-02-2021

Decided on : 01-03-2023

Sunita Rani w/o Shri Ajay Sharma, r/o Village Dhang Nichli, PO Pargana Plassi, Tehsil . .Petitioner. Nalagarh, District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd. Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 10.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Smt. Sunita Rani w/o Shri Ajay Sharma, r/o Village Dhang Nichli, P.O. Pargana Plassi, Tehsil Nalagarh, District Solan, HP, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 16.07.2008 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2029, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join4812 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro ltd. Vs. Oswal Agro Worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the4815 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

4816 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है, पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have4818 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in

its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs.

Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is accepted,

no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 24821 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 39 of 2021

Instituted on : 18-02-2021

Decided on : 01-03-2023

Dharampal s/o Shri Jemal Singh, r/o Village Boah, PO Sour, Tehsil Nalagarh, District Solan, H.P.

.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd. Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 10.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Dharampal s/o Shri Jemal Singh, r/o Village Boah, PO Sour, Tehsil Nalagarh, District Solan, H.P., for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallweal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of November, 2014 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties,4823 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements4825 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free4826 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave4827 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे। 4828 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the4830 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that

his signature was taken on blank papers. In spite of its correct appreciation of

evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 40 of 2021

Instituted on : 18-02-20214833 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Decided on : 01-03-2023 Mohinder Singh s/o Shri Tarsem Singh, r/o Village Badi Jakhian, PO Gardala, Tehsil & . .Petitioner. District Ropar Punjab.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, . .Respondents. Tehsil Nalagarh, District Solan, H.P. through its Managing Director

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 10.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Mohinder Singh s/o Shri Tarsem Singh, r/o Village Badi Jakhian, PO Gardala, Tehsil & District Ropar Punjab, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 24.05.2013 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail.

The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained4837 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the4838 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--4839 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their4841 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd. vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave

even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it

appropriate to let go of him and all his dues were paid. The dues sent by the

respondent Management were appropriated by the appellant. The appellant having

appropriated the dues, thereafter sought to rake up the issue of the resignation being

under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/ petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 64 of 2021

Instituted on : 01-03-2021

Decided on : 01-03-2023

Ranju Devi w/o Shri Surender Ram, r/o (130), District Solan, H.P. . .Petitioner.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 23.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Smt. Ranju Devi w/o Shri Surender Ram, r/o (130), District Solan, HP, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 14.10.2005 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the4846 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had4847 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representagives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri4848 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous4849 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलेक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो 4850 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सेलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she4852 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd. vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December, 1993 or from 22nd December, 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and

evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs.

Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is accepted,

no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is4855 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 65 of 2021

Instituted on : 01-03-2021

Decided on : 01-03-2023

Gurpreet Kaur w/o Shri Balbinder (Bilender) Singh, r/o Village & PO Bharatgarh, District . .Petitioner. Ropar, Punjab.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 23.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Smt. Gurpreet Kaur w/o Shri Balbinder (Bilender) Singh, r/o Village & PO Bharatgarh, District Ropar, Punjab, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting her resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Helper with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 08.08.2007 and thereafter the services of the petitioner were transferred to its sister concern i.e M/s Penguin Electronics Ltd., on 01.03.2019. The petitioner had completed more than 12 years with the respondents company. The petitioner had worked efficiently to the satisfaction of the respondent company. On 21.02.2020 the respondent management forcibly and illegally took the signatures of the petitioner on some blank papers and thereafter the respondent started causing interference in the joining of the duty by petitioner. On 22.02.2020, when the petitioner approached the respondent, the gateman conveyed direction of the company management that the services of the petitioner are no more required and he was asked not to come on duty. The services of the petitioner were terminated illegally without affording any opportunity of being heard as neither any notice has been issued nor any domestic enquiry as envisaged under the Act has been conducted.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Forum may kindly be pleased to allow the

petition of the petitioner/claimant thereby directing the respondent management to

reinstate the services of the claimant/petition in the respondent company with

respective effect i.e on 21.02.2020 with full back-wages, seniority and other

consequential service benefits with cost throughout and further granting all the reliefs

in favour of the petitioner, which are legally available to him under the above

circumstances by way of accepting the present petition in the interest of justice."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh4857 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:—

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representagives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro Worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the4860 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलेक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सेलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have4863 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th, December 1993 or from 22nd December, 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by

the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/ petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 24866 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 66 of 2021

Instituted on : 01-03-2021

Decided on : 01-03-2023

Lakshmi Devi w/o Shri Anusuiya r/o Village Pashta Malla, P.O. Bandana, District Pauri . .Petitioner. Gharwal Uttrakhand

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 23.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Smt. Lakshmi Devi w/o Shri Anusuiya, r/o Village Pashta Malla, PO Bandana, District Pauri Gharwal Uttrakhand, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Helper with M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 10.06.2008 and thereafter the services of the petitioner were transferred to its sister concern i.e. M/s Penguin Electronics Ltd. on 01.03.2019. The petitioner had completed more than 12 years with the respondents company. The petitioner had worked efficiently to the satisfaction of the respondent company. On 21.02.2020 the respondent management forcibly and illegally took the signatures of the petitioner on some blank papers and thereafter the respondent started causing interference in the joining of the duty by petitioner. On 22.02.2020, when the petitioner approached the respondent, the gateman conveyed direction of the company management that the services of the petitioner are no more required and he was asked not to come on duty. The services of the petitioner were terminated illegally without affording any opportunity of being heard as neither any notice has been issued nor any domestic enquiry as envisaged under the Act has been conducted.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Forum may kindly be pleased to allow the

petition of the petitioner/claimant thereby directing the respondent management to

reinstate the services of the claimant/petition in the respondent company with

respective effect i.e on 21.02.2020 with full back-wages, seniority and other

consequential service benefits with cost throughout and further granting all the reliefs

in favour of the petitioner, which are legally available to him under the above

circumstances by way of accepting the present petition in the interest of justice."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a4868 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:—

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements4870 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representagives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro Worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free4871 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave4872 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलेक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सेलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।4873 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the4875 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th, December 1993 or from 22nd December, 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that

his signature was taken on blank papers. In spite of its correct appreciation of

evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that : "once the workman voluntarily resigned on accepting voluntary Separation Scheme, and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 68 of 2021

Instituted on : 01-03-2021

Decided on : 01-03-20234878 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Karamjeet Kaur w/o Shri Ramesh Kumar r/o Village Chanobari PO Ratwari, Tehsil . .Petitioner. Nalagarh, District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd. Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. Through its Managing Director . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 23.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Smt. Karamjeet Kaur w/o Shri Ramesh Kumar, r/o Village Chanobari, PO Ratwari, Tehsil Nalagarh, District Solan, HP, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 19.07.2008 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement4880 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representagives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar4883 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलेक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे। 4884 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सेलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.—(1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of

workmen, all persons who were employed in the establishment or part of

the establishment, as the case may be, to which the dispute relates on the

date of the dispute and all persons who subsequently become employed in

that establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what4886 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both.

There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 69 of 2021

Instituted on : 01-03-2021

Decided on : 01-03-2023

Jasvir Kaur w/o Shri Balbir Chand, r/o Village & PO Rajpura, Tehsil Nalagarh, District . .Petitioner. Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 23.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Smt. Jasvir Kaur w/o Shri Balbir Chand, r/o Village & PO Rajpura, Tehsil Nalagarh, District Solan, HP for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting her resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Helper with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 08.08.2007 and thereafter the services of the petitioner were transferred to its sister concern i.e M/s Penguin Electronics Ltd., on 01.03.2019. The petitioner had completed more than 12 years with the respondents company. The petitioner had worked efficiently to the satisfaction of the respondent company. On 21.02.2020 the respondent4890 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 management forcibly and illegally took the signatures of the petitioner on some blank papers and thereafter the respondent started causing interference in the joining of the duty by petitioner. On 22.02.2020, when the petitioner approached the respondent, the gateman conveyed direction of the company management that the services of the petitioner are no more required and he was asked not to come on duty. The services of the petitioner were terminated illegally without affording any opportunity of being heard as neither any notice has been issued nor any domestic enquiry as envisaged under the Act has been conducted.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Forum may kindly be pleased to allow the

petition of the petitioner/claimant thereby directing the respondent management to

reinstate the services of the claimant/petition in the respondent company with

respective effect i.e on 21.02.2020 with full back-wages, seniority and other

consequential service benefits with cost throughout and further granting all the reliefs

in favour of the petitioner, which are legally available to him under the above

circumstances by way of accepting the present petition in the interest of justice."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by4891 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 12.10.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered4892 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representagives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an4893 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous4894 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलेक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की4895 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सेलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the4897 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation

merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not

in dispute that the job of the appellant was transferable. The appellant was

transferred to Pinjore but refused to join the new station and instead made

representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the4900 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 70 of 2021

Instituted on : 01-03-2021

Decided on : 01-03-2023.

Jasbinder Singh s/o Shri Roshan Lal, r/o Village Matnoh, PO Swarghat, District Bilaspur, . .Petitioner. H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . . Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 23.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Jasbinder Singh s/o Shri Roshan Lal, r/o Village

Matnoh, PO Swarghat, District Bilaspur, HP, for his reinstatement in service before

the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd.,

Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District

Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated

20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the

management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village

Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of

the workers union and after receiving full and final amount of Rs. 2.00 Lac as per

clause-2 of the said settlement, is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Helper with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 10.06.2008 and thereafter the services of the petitioner were transferred to its sister concern i.e M/s Penguin Electronics Ltd. on 01.03.2019. The petitioner had completed more than 12 years with the respondents company. The petitioner had worked efficiently to the satisfaction of the respondent company. On 21.02.2020 the respondent management forcibly and illegally took the signatures of the petitioner on some blank papers and thereafter the respondent started causing interference in the joining of the duty by petitioner. On 22.02.2020, when the petitioner approached the respondent, the gateman conveyed direction of the company management that the services of the petitioner are no more required and he was asked not to come on duty. The services of the petitioner were terminated illegally without affording any opportunity of being heard as neither any notice has been issued nor any domestic enquiry as envisaged under the Act has been conducted.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Forum may kindly be pleased to allow the

petition of the petitioner/claimant thereby directing the respondent management to

reinstate the services of the claimant/petition in the respondent company with

respective effect i.e on 21.02.2020 with full back-wages, seniority and other

consequential service benefits with cost throughout and further granting all the reliefs

in favour of the petitioner, which are legally available to him under the above

circumstances by way of accepting the present petition in the interest of justice."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested4902 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 30.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief. Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representagives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the4905 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--4906 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलेक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सेलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have4908 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As

rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date.

Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his4911 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 71 of 2021

Instituted on : 01-03-2021

Decided on : 01-03-2023

Manju w/o Shri Narayan Dass, r/o VPO Rajpura, Tehsil Nalagarh, District Solan, H.P.

. .Petitioner.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P Through its Managing Director. . .Respondents.

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 23.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Smt. Manju w/o Shri Narayan Dass, r/o VPO Rajpura, Tehsil Nalagarh, District Solan, HP, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting her resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Helper with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 14.07.2008 and thereafter the services of the petitioner were transferred to its sister concern i.e. M/s Penguin Electronics Ltd., on 01.03.2019. The petitioner had completed more than 12 years with the respondents company. The petitioner had worked efficiently to the satisfaction of the respondent company. On 21.02.2020 the respondent management forcibly and illegally took the signatures of the petitioner on some blank papers and thereafter the respondent started causing interference in the joining of the duty by petitioner. On 22.02.2020, when the petitioner approached the respondent, the gateman conveyed direction of the company management that the services of the petitioner are no more required and he was asked not to come on duty. The services of the petitioner were terminated illegally without affording any opportunity of being heard as neither any notice has been issued nor any domestic enquiry as envisaged under the Act has been conducted.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Forum may kindly be pleased to allow the

petition of the petitioner/claimant thereby directing the respondent management to

reinstate the services of the claimant/petition in the respondent company with

respective effect i.e on 21.02.2020 with full back-wages, seniority and other

consequential service benefits with cost throughout and further granting all the reliefs

in favour of the petitioner, which are legally available to him under the above

circumstances by way of accepting the present petition in the interest of justice."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties,4913 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No.

Issue No.2 No.

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements4915 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representagives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free4916 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examiantion of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave4917 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलेक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सेलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे। 4918 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own hand writing that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the4920 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that

his signature was taken on blank papers. In spite of its correct appreciation of

evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

_________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 74 of 2021

Instituted on : 10-03-2021

Decided on : 01-03-20234923 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Khairat Singh s/o Shri Jemal Singh, r/o Village Rakwal Lahad, PO Chalor, Tehsil . .Petitioner. Jawalamukhi, District Kangra, HP.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Khairat Singh s/o Shri Jemal Singh, r/o Village Rakwal Lahad, PO Chalor, Tehsil Jawalamukhi, District Kangra, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III),Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of September, 2014 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement4925 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar4928 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।4929 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the4931 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have

immediately approached some authority or his union or the Government labour

officer to say that he had never resigned but his resignation was taken forcibly or that

his signature was taken on blank papers. In spite of its correct appreciation of

evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 76 of 2021

Instituted on : 10-03-20214934 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Decided on : 01-03-2023 Vasudev s/o Shri Ram Lal, r/o Village Jaghed, PO Kattal, Tehsil Nalagarh, District Solan, . .Petitioner. H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, . .Respondents. Tehsil Nalagarh, District Solan, H.P. through its Managing Director

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Vasudev s/o Shri Ram Lal, r/o Village Jaghed, PO Kattal, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of August 2015 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to4935 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief. Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained4938 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admited case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the4939 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे। 4940 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what4942 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both.

There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs.

Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is accepted,

no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 77 of 2021

Instituted on : 12-03-2021

Decided on : 01-03-2023

Balwant Singh s/o Shri Padam Singh, r/o Village Patta, PO Kattal, Tehsil Nalagarh, District . .Petitioner. Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Balwant Singh s/o Shri Padam Singh, r/o Village Patta, PO Kattal, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of October 2015 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on4946 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR .

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no. 1 No

Issue No. 2 No

Relief. Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two4948 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J. C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition4949 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand,4950 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः-- प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।4951 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.—(1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act [or

an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a4953 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was

entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not

in dispute that the job of the appellant was transferable. The appellant was

transferred to Pinjore but refused to join the new station and instead made

representations against the same. Since the appellant did not join there was no option

left with the respondent management but to start disciplinary proceedings. A very

important fact to be noted is that at no stage the appellant challenged the transfer

order in any legal proceedings. At the stage when the disciplinary proceedings were

reaching a conclusion against the appellant, the appellant in his wisdom thought it

appropriate to resign and go out of service. It was the option with the appellant to

either challenge the transfer order or to contest the disciplinary proceedings but

instead of challenging the transfer order the chose to resign. His resignation was

accepted as the management as the management also in its wisdom thought it

appropriate to let go of him and all his dues were paid. The dues sent by the

respondent Management were appropriated by the appellant. The appellant having

appropriated the dues, thereafter sought to rake up the issue of the resignation being

under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 78 of 2021

Instituted on : 12-03-2021

Decided on : 01-03-2023

Parveen Malik s/o Shri Gulshan Malik, r/o Village Kotla Power House, PO & Tehsil . .Petitioner. Anandpur Sahib, District Ropar Punjab.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P, through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Parveen Malik s/o Shri Gulshan Malik, r/o Village Kotla

Power House, P.O. & Tehsil Anandpur Sahib, District Ropar Punjab, for his

reinstatement in service before the management i.e. the Occupier/ Factory Manager,

M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O.

Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per

clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial

Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh

Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

and the representatives of the workers union and after receiving full and final amount

of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes,

what relief the above aggrieved workman is entitled to from the above management?

and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during September 2008 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment4958 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully. 10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no. 1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.14959 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent,4960 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष4962 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 1. रमेश कुमार चंदेल 1. मुकेश कुमार 2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.—(1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act [or

an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a

workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/ petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present4967 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly. Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 79 of 2021

Instituted on : 12-03-2021

Decided on : 01-03-2023

Sawroop Singh s/o Shri Nichhiya Ram, r/o VPO Minjgram, Tehsil Nurpur, District Kangra, . .Petitioner. H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

The following reference petition has been, received from the Appropriate Government vide notification dated 25.02.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Sawroop Singh s/o Shri Nichhiya Ram, r/o VPO Minjgram, Tehsil Nurpur, District Kangra, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 26.03.2008 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the4969 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR .

as alleged?

95. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No4970 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Issue No.2 No. Relief. Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a4972 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलेक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा।4974 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.—(1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the4975 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a

minute. No reasonable man could have come to the conclusion to which the Labour

Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/4978 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

__________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 84 of 2021

Instituted on : 01-04-2021

Decided on : 01-03-2023

Narender Kumar s/o Shri Ram Chand, r/o Village & PO Rajpura, Tehsil Nalagarh, District . .Petitioner. Solan, HP.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 12.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Narender Kumar s/o Shri Ram Chand, r/o Village & PO Rajpura, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of September 2015 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and4983 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against4984 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।4985 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of ` 2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 85 of 2021

Instituted on : 01-04-2021

Decided on : 01-03-20234990 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Salinder Kumar s/o Shri Jagat Ram, r/o Village Bauh, PO Saur, Tehsil Nalagarh, District . .Petitioner. Solan, HP.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P Through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 16.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Salinder Kumar s/o Shri Jagat Ram, r/o Village Bauh, PO Saur, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of November 2014 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no. 1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of ` 2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid ` 2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained4994 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of ` 2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the4995 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे। 4996 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at4998 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The

Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 88 of 2021

Instituted on : 01-04-2021

Decided on : 01-03-2023

Raj Kumar s/o Shri Ranjit, r/o Village Radyali, PO Rajpura, Tehsil Nalagarh, District Solan, . .Petitioner. H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P Through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 16.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Raj Kumar s/o Shri Ranjit, r/o Village Radyali, PO Rajpura, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 14.03.2008 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner5002 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner/claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is5003 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully. 10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer.

There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings5006 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।5007 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining5009 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat And Another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of

the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not

in dispute that the job of the appellant was transferable. The appellant was

transferred to Pinjore but refused to join the new station and instead made

representations against the same. Since the appellant did not join there was no option

left with the respondent management but to start disciplinary proceedings. A very

important fact to be noted is that at no stage the appellant challenged the transfer

order in any legal proceedings. At the stage when the disciplinary proceedings were

reaching a conclusion against the appellant, the appellant in his wisdom thought it

appropriate to resign and go out of service. It was the option with the appellant to

either challenge the transfer order or to contest the disciplinary proceedings but

instead of challenging the transfer order the chose to resign. His resignation was

accepted as the management as the management also in its wisdom thought it

appropriate to let go of him and all his dues were paid. The dues sent by the

respondent Management were appropriated by the appellant. The appellant having

appropriated the dues, thereafter sought to rake up the issue of the resignation being

under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 89 of 2021

Instituted on : 01-04-2021

Decided on : 01-03-2023

Subhash Kaushal s/o Shri Nand Lal, r/o Village Jaged, PO Kattal, Tehsil Nalagarh, District . .Petitioner. Solan, HP.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 15.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Subhash Kaushal s/o Shri Nand Lal, r/o Village Jaged,

PO Kattal, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before

the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd.,

Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District

Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated

20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the

management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village

Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of

the workers union and after receiving full and final amount of Rs. 2.00 Lac as per

clause-2 of the said settlement, is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of May 2015 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had5014 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.15015 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has5016 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of ` 2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष5018 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 1. रमेश कुमार चंदेल 1. मुकेश कुमार 2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have5020 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of ` 2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in

its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/ petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 25023 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 91 of 2021

Instituted on : 05-04-2021

Decided on : 01-03-2023

Namdan s/o Shri Jagdish, r/o Village Sallewal, PO Rajpura, Tehsil Nalagarh, District Solan, . .Petitioner. H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P Through its Managing Director. Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate5024 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 AWARD The following reference petition has been, received from the Appropriate Government vide notification dated 15.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Namdan s/o Shri Jagdish, r/o Village Sallewal, PO Rajpura, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 26.08.2013 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:—

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR .

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not5027 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same5028 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent5029 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।5030 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.—(1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement5031 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the5033 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

____________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 92 of 2021

Instituted on : 05-04-2021

Decided on : 01-03-2023

Hariom s/o Shri Jagdish Chand, r/o VPO Bhogpur, Tehsil Nalagarh, District Solan, H.P.

. .Petitioner.

VERSUS

59. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

60. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 15.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Hariom s/o Shri Jagdish Chand, r/o VPO Bhogpur Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 18.09.2013 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief. Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and5039 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against5040 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार5041 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.—(1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the5043 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have

immediately approached some authority or his union or the Government labour

officer to say that he had never resigned but his resignation was taken forcibly or that

his signature was taken on blank papers. In spite of its correct appreciation of

evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

__________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 94 of 2021

Instituted on : 05-04-2021

Decided on : 01-03-20235046 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Anil Kumar s/o Shri Ram Krishan, r/o Village Punaila, P.O. Diggal, Tehsil Nalagarh, . .Petitioner. District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III) Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 22.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Anil Kumar s/o Shri Ram Krishan, r/o Village Punaila, PO Diggal, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of November 2014 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement5048 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar5051 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष5052 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.—(1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what5054 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both.

There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/ petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 95 of 2021

Instituted on : 05-04-2021

Decided on : 01-03-2023

Vivek Kumar s/o Shri Sawarn Singh, r/o Village & PO Nandrul, Tehsil and District Kangra, . .Petitioner. H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 22.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Vivek Kumar s/o Shri Sawarn Singh, r/o Village & PO Nandrul, Tehsil and District Kangra, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallweal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 01.11.2014 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner5058 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is5059 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two5060 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that5061 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the5062 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए5063 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सेलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.—(1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to5065 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves

to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not

in dispute that the job of the appellant was transferable. The appellant was

transferred to Pinjore but refused to join the new station and instead made

representations against the same. Since the appellant did not join there was no option

left with the respondent management but to start disciplinary proceedings. A very

important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 96 of 2021

Instituted on : 05-04-2021

Decided on : 01-03-2023

Amarjeet s/o Shri Baldev, r/o Village Sunad, PO Saur, Tehsil Ramshaher, District Solan, . .Petitioner. H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd. Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 22.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Amarjeet s/o Shri Baldev, r/o Village Sunad, PO Saur,

Tehsil Ramshaher, District Solan, HP, for his reinstatement in service before the

management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd.,

Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District

Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated

20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the

management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village

Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of

the workers union and after receiving full and final amount of Rs. 2.00 Lac as per

clause-2 of the said settlement, is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of November 2014 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner/claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits5070 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard.

Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and thereby the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार 2. यश पाल5074 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 विवाद का विस्तृत विवरण यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by5075 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.—(1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a

workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference5079 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

_________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 97 of 2021

Instituted on : 05-04-2021

Decided on : 01-03-2023

Gurvinder Singh s/o Shri Ram Dass Singh, r/o Village Dhang, PO Plassi Kalan, Tehsil . .Petitioner. Nalagarh, District Solan, HP.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate5080 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 AWARD The following reference petition has been, received from the Appropriate Government vide notification dated 22.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Gurvinder Singh s/o Shri Ram Dass Singh, r/o Village Dhang, PO Plassi Kalan, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 10.01.2015 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief. Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the5083 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of ` 2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary5084 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of5085 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सेलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा5086 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.—(1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no. 1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

__________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 106 of 2021

Instituted on : 06-05-2021

Decided on : 01-03-20235091 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Parvati w/o Shri Sahab Deen, r/o Village Jasarpur, P.O. Motigang, Tehsil Bikapur, District . .Petitioner. Faizabad U.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P Through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 26.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Smt. Parvati w/o Shri Sahab Deen, r/o Village Jasarpur, PO Motigang, Tehsil Bikapur, District Faizabad UP, Pin No. 224 204, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 02.07.2008 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2029, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement5093 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar5096 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष5097 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were

so summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date

of the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what5099 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of ` 2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of ` 2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both.

There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 107 of 2021

Instituted on : 06-05-2021

Decided on : 01-03-2023

Sangat Singh s/o Shri Bir Singh, r/o Village Bada Basot, PO Plassi Kalan, Tehsil Nalagarh, . .Petitioner. District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 26.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Sangat Singh s/o Shri Bir Singh, r/o Village Bada Basot, PO Plassi Kalan, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III) Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of September 2007 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on5103 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR .

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no. 1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation5105 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition5106 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand,5107 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and thereby the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए 5108 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the5110 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation

merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not

in dispute that the job of the appellant was transferable. The appellant was

transferred to Pinjore but refused to join the new station and instead made

representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the5113 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

__________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 108 of 2021

Instituted on : 06-05-2021

Decided on : 01-03-2023

Kulwant Singh s/o Shri Rajinder Singh, r/o Village & PO Dabhota, Tehsil Nalagarh, District solan, H.P.

.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 26.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Kulwant Singh s/o Shri Rajinder Singh, r/o Village &

PO Dabhota, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service

before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics

Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh,

District Solan, H.P. after submitting his resignation as per clause-1 of the settlement

dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the

management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village

Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of

the workers union and after receiving full and final amount of Rs. 2.00 Lac as per

clause-2 of the said settlement, is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since September 2007 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits5115 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR as alleged?

. 3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers5117 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair.

Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and thereby the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--5119 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a

workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2.

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present5124 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H. P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 109 of 2021

Instituted on : 01-03-2021

Decided on : 01-03-2023

Aman s/o Shri Brahmanand, r/o Village Rampur, P.O. Ganguwal, Tehsil Anandpur Sahib, . .Petitioner. District Ropar, Punjab.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P Through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

The following reference petition has been, received from the Appropriate Government vide notification dated 26.03.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Aman s/o Shri Brahmanand, r/o Village Rampur, P.O. Ganguwal, Tehsil Anandpur Sahib, District Ropar, Punjab, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallweal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of Feb., 2015 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR .

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue No. 2 No

Relief. Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment5128 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respodnent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not5129 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then whey the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा।5131 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding.— (1) A settlement arrived at

by agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was5132 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are form natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a

minute. No reasonable man could have come to the conclusion to which the Labour

Court has come to, though the resignation letter was true and though the signature

was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the5135 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

__________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 167 of 2021

Instituted on : 04-09-2021

Decided on : 01-03-2023

Mohan Singh s/o Shri Ramjji Dass, r/o Village Sallewal, P.O. Rajpura, Tehsil Nalagarh, . .Petitioner. District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P Through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 16.04.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Mohan Singh s/o Shri Ramjji Dass, r/o Village Sallewal, P.O. Rajpura, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 29.12.2006 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:—

Issue no. 1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also5139 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representagives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s5141 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा। 5142 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the5144 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have

immediately approached some authority or his union or the Government labour

officer to say that he had never resigned but his resignation was taken forcibly or that

his signature was taken on blank papers. In spite of its correct appreciation of

evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 170 of 2021

Instituted on : 04-09-20215147 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Decided on : 01-03-2023 Avtar Singh s/o Shri Sadh Ram, r/o Village Saner, P.O. Manpura, Tehsil Nalagarh, District . .Petitioner. Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. 2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 09.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Avtar Singh s/o Shri Sadh Ram, r/o Village Saner, P.O. Manpura, Tehsil Nalagarh, District Solan, H.P., for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 17.09.2013 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail.

The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? .

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR .

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no. 1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Concilaition Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements5151 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the5152 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।5153 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what5155 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both.

There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competant nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 172 of 2021

Instituted on : 04-09-2021

Decided on : 01-03-2023

Rajeev Kumar s/o Shri Ramesh Chand, r/o Village Dhar Kharoti, P.O. Rav, Tehsil Rakkar . .Petitioner. District Kangra, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 09.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Rajeev Kumar s/o Shri Ramesh Chand, r/o Village Dhar Kharoti, P.O. Rav, Tehsil Rakkar District Kangra, HP, for his reinstatement in service before the management i.e. the Occupier/Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) during the month of October, 2015 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on5159 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply fi led by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two5161 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the5162 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the5163 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and thereby the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए 5164 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the5166 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation

merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not

in dispute that the job of the appellant was transferable. The appellant was

transferred to Pinjore but refused to join the new station and instead made

representations against the same. Since the appellant did not join there was no option

left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no. 1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 173 of 2021

Instituted on : 04-09-2021

Decided on : 01-03-2023

Anita Kaur w/o Shri Shamsher Singh, r/o Village & P.O. Bharatgarh, Tehsil & District . .Petitioner. Ropar, Punjab.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, . .Respondents. Tehsil Nalagarh, District Solan, H.P. through its Managing Director

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Smt. Anita Kaur w/o Shri Shamsher Singh, r/o Village &

P.O. Bharatgarh, Tehsil & District Ropar, Punjab, for her reinstatement in service

before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics

Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh,

District Solan, H.P. after submitting his resignation as per clause-1 of the settlement

dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the

management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village

Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of

the workers union and after receiving full and final amount of Rs. 2.00 Lac as per

clause-2 of the said settlement, is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 24.11.2006 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company5171 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:—

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR .

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner5173 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल5175 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external5177 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he

was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is5180 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

__________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 174 of 2021

Instituted on : 04-09-2021

Decided on : 01-03-2023

Sonal Devi w/o Shri Shivaji Parsad, r/o Village Baliban, District Gopalganj, Bihar.

. .Petitioner.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Smt. Sonal Devi w/o Shri Shivaji Parsad, r/o Village Baliban

District Gopalganj, Bihar, for her reinstatement in service before the management i.e.

the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh

Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after

submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at

u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin

Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil

Nalagarh, District Solan, H.P. and the representatives of the workers union and after

receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is

proper and justified? If yes, what relief the above aggrieved workman is entitled to

from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 2007 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits5182 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R- 1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers5184 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair.

Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--5186 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have5188 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in

its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 25191 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 175 of 2021

Instituted on : 04-09-2021

Decided on : 01-03-2023

Ami Samal s/o Shri Vibhuti Samal r/o Village Dinbandh, P.O. & Tehisl Kalang, District . .Petitioner. Dhenkanal Orisas

VERSUS

1. The Occupier/Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, . .Respondents. Tehsil Nalagarh, District Solan, H.P. through its Managing Director

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C Bhardwaj, AR.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Ami Samal s/o Shri Vibhuti Samal, r/o Village Dinbandh, PO & Tehisl Kalang, District Dhenkanal Orisas, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 1.11.2006 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation,5193 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no. 1 No

Issue No. 2 No

Relief. Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had5195 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Concilaition Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. And another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the5196 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and thereby the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen.

Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार5198 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding5199 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the5201 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 178 of 2021

Instituted on : 04-09-2021

Decided on : 01-03-2023

Deepak Raj s/o Shri Amardev, r/o Village Narad, P.O. Massewal, Tehsil Anandpur Sahib, . .Petitioner. District Ropar Punjab.

VERSUS

Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. 2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J. C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 16.04.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Deepak Raj s/o Shri Amardev r/o Village Narad, P.O. Massewal, Tehsil Anandpur Sahib, District Ropar Punjab, for his reinstatement in service before the management i.e. the Occupier/Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallweal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 26.9.2017 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue No. 1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also5206 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and thereby the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s5208 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।5209 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the5211 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have

immediately approached some authority or his union or the Government labour

officer to say that he had never resigned but his resignation was taken forcibly or that

his signature was taken on blank papers. In spite of its correct appreciation of

evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 179 of 2021

Instituted on : 04-09-2021

Decided on : 01-03-2023

Kanta Devi w/o Shri Santosh Kumar, r/o Village Dugri, P.O. Malikpur, Tehsil & District . .Petitioner. Ropar, Punjab

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 06.04.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Smt. Kanta Devi w/o Shri Santosh Kumar, r/o Village Dugri, P.O. Malikpur, Tehsil & District Ropar, Punjab, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 20.09.2007 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner5215 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner/claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:—

1. Whether the demand of the petitioner for her reinstatement in service before the management of respondent company after submitting her resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:—

Issue no. 1 No.

Issue No. 2 No.

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence her sworn in affidavit (PW-1/A), wherein she had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially she was engaged with M/s Prithi Kitchen. She further admitted that there was a union in the M/s Prithi Kitchen. She had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. She admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. She again admitted to have joined as fresh hand with Penguin Ltd. She further admitted that she had not completed one year service with the Penguin Ltd. She again admitted that she was paid salary for no work. She feigned ignorance that the dispute was raised before the Labour Officer. She again admitted that a sum of5217 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. She denied that she tendered her resignation and received full and final settlement. She further denied that she tendered resignation out of her free will and volition. She had also denied that after receiving full & final settlement, she is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the5218 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. She argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Concilaition Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of th Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the5219 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and thereby the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए 5220 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of5222 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in her own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise her voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding

of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not

in dispute that the job of the appellant was transferable. The appellant was

transferred to Pinjore but refused to join the new station and instead made

representations against the same. Since the appellant did not join there was no option

left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that she was forced to tender her resignation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he/she has not been terminated illegally. He/she is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 212 of 2021

Instituted on : 09-11-2021

Decided on : 01-03-2023

Swaran Singh s/o Shri Pritam Singh, r/o Village Kanganwal, P.O. Plassi Kalan, Tehsil . .Petitioner. Nalagarh, District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 11.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Swaran Singh s/o Shri Pritam Singh, r/o Village

Kanganwal, P.O. Plassi Kalan, Tehsil Nalagarh, District Solan, HP, for his

reinstatement in service before the management i.e. the Occupier/ Factory Manager,

M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O.

Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per

clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial

Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh

Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

and the representatives of the workers union and after receiving full and final amount

of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes,

what relief the above aggrieved workman is entitled to from the above management?

and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Helper with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment5227 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR .

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C. Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respdonent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the5230 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruitted with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have5233 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in

its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/ petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 25236 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 214 of 2021

Instituted on : 09-11-2021

Decided on : 01-03-2023

Tirath Singh s/o Shri Prem Singh, r/o Village Sauri Gujra, P.O. Panjehra, Tehsil Nalagarh, . .Petitioner. District Solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P Through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 28.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Tirath Singh s/o Shri Prem Singh, r/o Village Sauri Gujra, PO Panjehra, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 15.05.2015 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties,5238 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR .

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No.2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements5240 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workmers and management is not a legal settlement executed between the parties. They further argued that the settlement has been singed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per5241 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and thereby the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their5242 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार5243 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the

later portion of its award accepted the theory of forced resignation. There is absolutely

no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 217 of 2021

Instituted on : 09-11-2021

Decided on : 01-03-20235248 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Sandeep Kumar s/o Shri Prem Lal, r/o Village Dhoun Kothi, Tehsil Sadar, District Bilaspur, . .Petitioner. H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:

"Whether the demand of Shri Sandeep Kumar s/o Shri Prem Lal r/o Village Dhoun Kothi, Tehsil Sadar, District Bilaspur, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 26.06.2015 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:—

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement5250 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No

Relief Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar5253 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 that the petitioner do not want any substantive relief against the previous owner and thereby the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष5254 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what5256 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both.

There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that : "after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the resignation." 34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 220 of 2021

Instituted on : 09-11-2021

Decided on : 01-03-2023

Jaswant Singh s/o Shri Ram Lok, r/o Village Dhang Uperli, P.O. Plassi Kalan, Tehsil Nalagarh, District Solan, H.P. …Petitioner.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P Through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J. C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Jaswant Singh s/o Shri Ram Lok, r/o Village Dhang Uperli, P.O. Plassi Kalan, Tehsil Nalagarh, District Solan, H.P., for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 13.11.2013 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner5260 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e. M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is5261 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 17.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no. 1 No

Issue No. 2 No

Relief. Reference answered in negative and the claim petition is

ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation5262 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers persoanlly nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid concilaition effected5263 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interest of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respondent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resigantion a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand,5264 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, concilaition proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and there by the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए5265 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on—

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the5267 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation

merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not

in dispute that the job of the appellant was transferable. The appellant was

transferred to Pinjore but refused to join the new station and instead made

representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 2

36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the5270 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 221 of 2021

Instituted on : 09-11-2021

Decided on : 01-03-2023

Gursevak Singh s/o Shri Pal Singh, r/o Village Kashambhowal Gurjan, PO Manpura Tehsil . .Petitioner. Nalagarh, District solan, H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd., (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P Through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

For the Respondent : Sh. Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Shri Gursevak Singh s/o Shri Pal Singh, r/o Village Kashambhowal Gurjan, P.O. Manpura, Tehsil Nalagarh, District Solan, HP, for his reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management? and if not its effect?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 07.02.2015 and remained as such till his illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2019, the petitioner applied to the respondent company and remained as such, till he was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow him to join his duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered his resignation, which was duly accepted by the respondent and a sum of Rs. 2,00,000/- (two lacs) has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work5272 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.

7. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, vide zimni order dated 23.09.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service before the management of respondent company after submitting his resignation as per settlement dated 20.02.2020 arrived at between the respondent management and petitioner union, after receiving full and final amount of Rs. 2 Lakh as per settlement, is improper and unjustified? If yes, what relief the petitioner is entitled to and its effect? . .OPP.

2. Whether the claim petition is neither competent nor maintainable in the present form, . .OPR.

as alleged?

3. Relief

8. Henceforth, parties to the dispute were asked to adduce oral as well as documentary evidence in support of their respective claims or issues so framed.

9. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

10. For the reasons to be recorded hereinafter, while discussing issues for determination, my findings on the point-wise issues, are as under:

Issue no.1 No

Issue No. 2 No5273 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 Relief Reference answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

11. In order to substantiate its case, the petitioner had appeared into the witness dock as (PW-1) and tendered into evidence his sworn in affidavit (PW-1/A), wherein he had categorically reiterated almost all the averments, made thereto in the claim petition.

12. In cross-examination, the petitioner had testified that initially he was engaged with M/s Prithi Kitchen. He further admitted that there was a union in the M/s Prithi Kitchen. He had feigned ignorance that M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. He admitted that on the directions of the Hon'ble High Court, the matter was referred to the Labour Officer, where full & final settlement was paid by Prithi Kitchen. He again admitted to have joined as fresh hand with Penguin Ltd. He further admitted that he had not completed one year service with the Penguin Ltd. He again admitted that he was paid salary for no work. He feigned ignorance that the dispute was raised before the Labour Officer. He again admitted that a sum of `2,00,000/- (two lakhs) were paid by the Penguin Ltd. towards settlement. He denied that he tendered his resignation and received full and final settlement. He further denied that she tendered resignation out of his free will and volition. He had also denied that after receiving full & final settlement, he is not entitled for re-instatement.

13. To refute the allegations of the petitioner, the respondent had examined Shri Surender Singh Bisht, presently posted as Labour Officer, Baddi as (RW-1), who proved on record the settlement arrived at between the parties dated 20.02.2020 registered on 25.02.2020 (R-1) and settlement between the parties dated 15.02.2019 (R-2).

14. In cross-examination, he admitted that the worker is not a signatory to settlement (R-1). Volunteered that it was signed by their representatives. He further admitted that the settlement (R-2) was also signed by the union representatives.

15. Smt. Shalu Chandel, Manager (HR) of respondent company appeared into the witness box as (RW-2), who had tendered into evidence her sworn in affidavit (RW-2/A), wherein she also reiterated almost all the averments as made thereto in the reply. She also tendered into evidence the letter of appointment (R-3), payment voucher (R-4), registration letter (R-5), reply to demand notice (R-6) and letter Mark RX-1, on record.

16. In cross-examination, the respondent witness duly admitted that there was a business transfer agreement executed between the two giants i.e. M/s Prithi Kitchen and M/s Penguin Electronics Ltd., in the year 2019. She admitted that there was an ascertaining of these settlements arrived at before the Conciliation-cum-Labour Officer under section 12(3) and 18(1) were executed between the management and the workers representatives/union. She admitted that the workers are not a signatory to the aforesaid settlements. She denied that the respondent management had approached the Government for closure of the company under section 25-FFF of the Act, in the year 2020. She further denied that the resignation of the workers were obtained forcibly by the management and the workers union. She denied that the acceptance of the resignation was not conveyed to the workmen. Volunteered that the workers put their signatures on the payment voucher out of their free will and consent and again submitted resignation free and voluntarily made. She denied that the management had put the pressure on the workers.

17. This is the entire oral as well as documentary evidence adduced from the side of the parties.

18. Ms. Neetu Sharma, Advocate and Shri J.C Bhardwaj, Ld. Counsel and AR for the petitioner has contended with all vehemence that the settlement was neither signed by the workers personally nor they have authorized anyone to sign the settlement on their behalf in this regard. Since, there is no authorization as per the prescribed performa F has been proved by the respondent, hence, the settlement arrived at between the representatives of the workers and management is not a legal settlement executed between the parties. They further argued that the settlement has been signed between the management and some of the representatives namely Shri Mukesh and Shri Yashpal under section 18(1) of the Act, hence, this settlement is not at all binding on the petitioner and it is only applicable on the signatory of the settlement. The management of the respondent company has not produced the best evidence by not examining the signatories i.e. Shri Mukesh and Shri Yashpal to the settlement, which could go to show that under which capacity they have signed the settlement, hence, the settlement executed, if any, ultimately required to be set aside and quashed. She also argued that the settlement amount, if any, is proved against the workers, the same can be deducted at the rate of 25% per month from the salary of the workers. She argued that the payment of three months salary is required to be paid to each workmen as more than 100 workmen were working at the time of so called settlement. It is not at all understandable that why the respondent paid `2,00,000/- (two lakhs) to the petitioner without any valid conciliation effected interse the parties, which clearly shows that the respondent management had resorted to an unfair labour practice and victimization of the petitioner/workers. They argued that if the workers have submitted their resignation voluntarily then what would be the need for the settlement and with whom and why these settlements were not signed before the Labour-cum-Conciliation Officer. There is no acceptance of the resignation in these settlements. There is no proof placed on record that the settlement amount has been withdrawn by the workmen. It is argued that one hand the company is alleging the amicable settlement but in other hand tendering of resignation, therefore the present case is clear cut example of unfair labour practice as the resignation and settlements were arrived in the wake that the company is being closed. There is a bulk resignations obtained under section 25-FFF of the Act, however, the company is still in working condition, hence, the same amounts to an illegal retrenchment. They prayed that the petitioner be reinstated in service with all consequential service benefits including full back-wages in the interst of justice.

19. Ld. Counsel and AR for the petitioner also placed reliance on the case law M/s Oswal Agro Ltd. Vs. Oswal Agro worker Union 2005 LLR 305 (SC) and Workmen of Minakshi Mill Vs. Minakshi Mill Ltd. and another 1992 LLR 481 (SC).

20. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the provisions of section 25-N of the Act would not be applicable in the present facts and circumstances of the case as the workers have not been in continuous service for not less then one year and they had not been retrenched by the respodnent employer. It is not at all a case of retrenchment, rather he argued that it is the simplicitor case of tendering resignation out of free will and consent. After acceptance of the resignation a sum of `2,00,000/- (two lakhs) as per settlement has been paid to the petitioner. He further argued that it is quite apperant from the reference received from the appropriate government that each and every workers have been paid `2,00,000/- (two lakhs) settlement amount for less then one year of service. The documentary evidence filed by the respondent would clearly established that it is a case of clear cut tendering of resignation and not retrenchment. It is settled law that once the resignation is tendered and the same has been accepted by the appropriate authority, thereafter the same cannot be withdrawn. It is not established on record that had it been a case of obtaining signatures on blank papers or tendering resignation forcibly then why the petitioner had remained slumbered over the matter for such a pretty long period, till the raising of the demand notice. Neither the petitioner reported the matter to the Police nor brought the same to the notice of the Labour Commissioner or the higher authorities. The plea of submitting bulk resignations is also not tenable. The entire case raised from the side of the petitioner is crystal clear from the tone and tenor of the reference itself that after submitting the5275 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 resignation and settlement arrived between the parties dated 20.02.2020 and after receiving full & final amount of `2,00,000/- (two lakhs) as per clause of the said agreement is proper and fair. Therefore, he prayed for the dismissal of the claim petition. He also placed reliance on the case law Globe Ground India Employees Vs. Lufthansa German Airlines decided on 23.4.2019.

21. I have given my best anxious considerable thought to the respective submissions of the Learned Counsel for the parties and have also scrutinized the entire case record with minute care, caution and circumspection.

22. Thus, from a careful and meticulous examination of the entire case record, it is manifestly clear on record that the petitioner was engaged as a Technician with a erstwhile previous company i.e. M/s Prithi Kitchens. It is proved to the satisfaction of the Court that the petitioner had worked as such till 15.02.2019 and thereafter M/s Prithi Kitchen was taken over by the respondent company. It is an admitted case of both the parties that the petitioner was engaged as fresh hand/recruited with the respondent company on 26.02.2019 and had worked as such till 20.02.2020. It is alleged that the signatures of the petitioner were obtained on some blank papers, therefore the alleged resignation is nothing but has been obtained forcibly by the respondent. On the other hand, the respondent had asserted that as per agreement executed between the previous owner i.e. M/s Prithi Kitchen, the respondent was ready to retain the workers and engage them as fresh recruit/hands. The petitioner was engaged as fresh hand and worked as such for a period of approx. 9-10 months but she was not at all interested to work further, therefore, conciliation proceedings were held and settlement was arrived between the parties and full and final settlement amount was paid to the petitioner.

23. Admittedly, there were as many as two settlements arrived on record, firstly under section 12(3) (R-2) and under section 18(1) (R-1), which were produced on record. On behalf of the petitioner no documentary proof has been supplied on record. Both these settlements (R-1) and (R-2) produced on record were duly registered with the Labour Officer, as proved on record. Though, the petitioner had arrayed the previous company M/s Prithi Kitchens as one of the contesting respondent, but, Ld. Counsel for the petitioner vide separate statement stated at the bar that the petitioner do not want any substantive relief against the previous owner and thereby the petitioner had restricted his/her claim to the contesting respondent i.e. M/s Penguin Electronics. Similar is the situation arises from the reference received from the appropriate government. In the reference there is mention of the contesting respondent M/s Penguin Electronics only and M/s Prithi Kitchens is not a party to the reference received from the appropriate government. Moreso, vide separate statements Ld. Counsel/AR for the petitioner did not press the claim petition against the respondent M/s Prithi Kitchen Appliances Ltd. The statement is placed on record. As per the settlement arrived at between the parties, it is agreed upon that all the workers would get the retrenchment compensation along-with other benefits such as one month's salary, gratuity, leave encashment etc. It is also asserted that all the workers who are willing to do work will submit their resignation and will get all the financial benefits from the previous owner M/s Prithi Kitchen. Another settlement arrived at between the parties dated 20.02.2020 (R-1), which was executed between the respondent management and representatives of the workers union under the egis of INTUC President Shri Hardeep Baba whereby it was agreed that all the workers who are not willing to work shall tender their resignations which will be accepted by the respondent management and thereafter the respondent management shall pay full & final settlement amount to each and every worker. Here, I would like to reproduce settlement (R-1), which reads thus:

समझौता नामा

(जेरे धारा 18-1 औद्योगिक विवाद अधिनियम, 1947)

5276 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 समझौता नामा आज दिनांक 20-2-2020 मुकाम गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में निम्नलिखित के मध्य हुआः--

प्रबंधन पक्ष कामगार पक्ष

1. रमेश कुमार चंदेल 1. मुकेश कुमार

2. यश पाल

विवाद का विस्तृत विवरण

यह कि प्रबंधन पक्ष की फैक्ट्री पेंगुइन इलैक्ट्रोनिक लिमिटेड, गांव सल्लेवाल, तहसील नालागढ़, जिला सोलन, हिमाचल प्रदेश में स्थित है जहां पर मिक्सी बनाने का काम किया जाता है। प्रबंधन दूसरी कम्पनी जो कि Branded नाम से बाजार में है उनके लिए काम कर रहा है पिछले कुछ महीनों से उक्त कम्पनी की तरफ से कोई मांग न होने के कारण प्रबंधन के पास फैक्ट्री में कोई उत्पादन नहीं हो रहा है तथा कामगार व स्टाफ बिना कार्य के खाली बैठे हैं जिस पर प्रबंधन ने कामगार व स्टाफ की नौकरी को बचाये रखने के लिए कुछएक कामगार व स्टाफ का तबादला सल्लेवाल से दमन किया लेकिन स्टाफ/कामगारों ने तबादला पत्र की प्राप्ति के बावजूद भी दमन में रिपोर्ट नहीं किया तथा प्रबंधन ने उनके खिलाफ अनुशासनात्मक कार्यवाही शुरू की।

समझौते की शर्तेंः

आज दोनों पक्षों में माननीय हरदीप बाबा, प्रदेश अध्यक्ष INTUC हिमाचल प्रदेश के मध्यस्थता की वजह से यह समझौता बिना किसी दबाव के हो गया है जोकि निम्नलिखित शर्तों पर हुआ हैः--

1. यह कि फैक्ट्री में कार्यरत तमाम कामगार अपने पद से त्याग पत्र दे देंगे जोकि प्रबंधन द्वारा स्वीकार किये जायेंगे।

2. यह कि कामगारों द्वारा त्यागपत्र देने के उपरान्त प्रबंधन उनका कुल चुकता हिसाब जिनमें BONUS, LEAVE ENCASHMENT, अब तक की सैलरी (20-02-2020) तथा विशेष सहायता राशि को मिला कर FULL AND FINAL के रूप में दो लाख का AMOUNT हर एक कामगार को अदा करेगा।

3. कामगारों द्वारा त्याग-पत्र दिये जाने व प्रबंधन द्वारा स्वीकार किये जाने तथा कुल चुकता हिसाब अदा करने के पश्चात्‌ कामगारों का उनकी सेवाओं पर कोई अधिकार नहीं रहेगा तथा कामगार भविष्य में अपनी सेवाओं को लेकर किसी भी प्रकार का कोई भी विवाद प्रबंधन के खिलाफ नहीं करेंगे।

4. कामगार पक्ष द्वारा जो पत्र मांग-पत्र के रूप में श्रम अधिकारी बद्दी को दिनांक 27-01-2020 को दिया गया था तथा जिस पर समझौता वार्ता फेल हो गयी थी उस मांग-पत्र को भी कामगार पक्ष निरस्त करता है तथा कामगार पक्ष श्रम आयुक्त शिमला को पत्र द्वारा इस बारे में लिखेगा कि उनका प्रबंधन के साथ समझौता हो गया है। लिहाजा इस पत्र पर व Failure Report पर कोई आगामी कार्यवाही न की जाए।

5. यह समझौता नामा दोनों पक्षों द्वारा श्रम अधिकारी बद्दी के पास पंजी—त करवाया जाएगा। प्रबंधन पक्ष कामगार पक्ष 1. रमेश कुमार चंदेल 1. मुकेश कुमार गवाह

Hardeep Singh Baba,

President, INTUC (H.P.).

24. Hence, the Culling out of the aforesaid settlement arrived at between the parties under section 18(1) of the Act which has been executed between the parties to which the representative of the workmen as well as representatives of the management put their signatures and witnesses by INTUC President Shri Hardeep Baba. The aforesaid settlement was duly registered with the Labour Officer.

25. Before proceeding further, it is apposite to mention the relevant provisions of the Act. Therefore, I deem it proper to reproduce section 18 of the Act, which reads as under:

"Persons on whom settlements and awards are binding: (1) A settlement arrived at by

agreement between the employer and workman otherwise than in the course of

conciliation proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration award] which has

become enforceable shall be binding on the parties to the agreement who referred

the dispute to arbitration.]

(3) A settlement arrived at in the course of conciliation Proceedings under this Act

[or an arbitration award in a case where a notification has been issued under sub-

section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be binding on--

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the

dispute, unless the Board, [arbitrator,] 8*[Labour Court, Tribunal or

National Tribunal], as the case may be, records the opinion that they were so

summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of workmen,

all persons who were employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date of

the dispute and all persons who subsequently become employed in that

establishment or part."

26. It is crystal clear from the perusal of the aforesaid provision of law that once the settlement is arrived at between the parties otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement. Time and again it is argued that the said agreement was signed by one Shri Mukesh Kumar and Shri Yash Pal, who were not duly authorized by the petitioner, they were not examined. So far as concerning the settlement arrived at between the parties and bound on all the parties, it is settled proposition of law that settlement which was arrived at by an agreement between the company and its employees or workmen represented by their mazdoor/Trade Union only and it was arrived at otherwise than in the course of a conciliation proceeding. Accordingly, such bipartite settlement was binding in terms of section 18(1) of the Act. A settlement arrived at in the course of conciliation proceedings or otherwise than will be binding on all the workmen. The Court shall presume that the settlement arrived at otherwise than in the course of conciliation proceedings is just and fair. It becomes binding on all the parties and all the persons who have been subsequently effected by the said settlement in that establishment. I have5278 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 carefully scrutinized the settlement (P-1) and is of the considered opinion that the said settlement is fair and legal and there is no illegality in the same.

27. Next comes the incriminating piece of evidence i.e. resignation letter dated 21.02.2020 (R-5) produced from the side of the respondent whereby the petitioner in his/her own handwriting had written that he/she is not in position to continue further with the job and thereby tendered his/her resignation for acceptance. The resignation is free from any kind of internal or external pressure. The said resignation has duly been accepted by the respondent. Moreso, in the payment voucher (R-4), the petitioner had by making endorsement with his/her own handwriting that he/she had received full & final settlement amount of `2,00,000/- (two lakhs) and now nothing is due in her favour from the respondent company. Another limb of the argument advanced before me by the respondent that during the course of arguments, it is argued that the signatures of the petitioner were obtained on blank papers. It is also argued that some of the workers were asked to sign in the closed dark room. Though, this fact has neither been pleaded nor proved on record. The onus of proving the alleged fact lies on the shoulder of the petitioner. The petitioner has miserably failed to prove by leading cogent, clear and clinching evidence that her signatures were either obtained in a dark room or on blank papers. It is settled law that a fact pleaded and not proved and similarly a fact proved and not pleaded are of no consequences. Here, the situation is different as the obtaining of signatures on blank paper that is too in dark room is neither pleaded nor proved. Consequently, a plea which is neither pleaded nor proved assumes no significance in the eyes of law. Such a plea/contention raised at bar is devoid of force and not tenable under law. It is also argued that some of the workers are illiterate and not in position to evaluate the consequences of their signatures and so on. It is satisfactorily proved on record that the submission of resignation in his own handwriting would not tantamount to any kind of tantrum as contemplated before me by the Ld. Counsel for the petitioner by citing lot of excuses. To my mind all these pleas are not sustainable and merely proved to be lame excuses. I failed to understand that if it is so than what was the occasion for the petitioner not to raise his voice for obtaining signatures on the blank paper and that in the dark closed room. After the acceptance of the resignation, the petitioner was duly paid full & final settlement amount of `2,00,000/- (two lakhs) in terms of settlement arrived at between the parties (R-1), on record. As a matter of fact, the settlement arrived at between the parties (R-1), tendering of resignation (R-5) and its acceptance by the respondent management, payment of `2,00,000/- (two lakhs) by the respondent management as full and final settlement to the petitioner are from natural corollary of the sequence of events which clearly established that the petitioner who had worked with the respondent company for less than one year was paid full & final amount of `2,00,000/- (two lakhs) as compensation. The entire averments averred in the resignation dated 21.2.2020 (R-5), nowhere depicts that it is a case of forced resignation. The resignation tendered by the petitioner is out of her free will and volition.

28. Their Lordship of Hon'ble High Court of Bombay in a case titled as Laffans India Pvt. Ltd.vs Pancham Singh Rawat and another, Decided on 30 August, 2002, with equivalent citation 2003 (96) FLR 310, 2002 (4) MHLJ 470, held as hereunder:

"In my opinion, the award of the Labour Court cannot stand scrutiny even for a minute. No reasonable man could have come to the conclusion to which the Labour Court has come to, though the resignation letter was true and though the signature was admitted by the respondent workman and though he had received letter from the petitioner company that his resignation was accepted, it could be said that it was a forced resignation. It is a fact that from 17th December 1993 or from 22nd December 1993, the respondent workman at no point of time had complained to any authority under the law or to anyone including his union that he was forced to resign from employment or that he was forced to sign some blank papers and that such blank papers were used as his resignation letter. As rightly observed by the Labour Court in

its earlier part of the Award that even in the demand letter submitted by the respondent workman after a period of 15 months, he did not whisper that his resignation was a forced resignation. It is absolutely unbelievable that if a workman is forced to resign he would keep quiet for a period of 15 months and would not take any action of any nature to protest against the force used by the employer to obtain such resignation letter. The delay of 15 months in raising demand itself is a crucial factor to discard totally the false theory of the workman that he was forced to resign or that his signature was taken on the blank papers or that such papers are used as resignation letter. In spite of more than sufficient material and evidence on record and though the Labour Court was satisfied about the factual aspect of the resignation I fail to understand how in the subsequent paragraphs of the award, the Labour Court has changed its flow of the award and reasoning for an resignation and come to a conclusion that the resignation was a forced resignation merely because the name of the respondent workman was not in the FIR. The finding of the Labour Court, therefore, is totally baseless and perverse and the same deserves to be quashed and set aside. Since the respondent workman had voluntarily resigned, there was no question of holding any domestic enquiry to punish the delinquent workman. It was entirely for the employer to accept resignation to simply get rid of the workman to buy peace and to save from the cost of enquiry or to hold an enquiry and punish. No inference of any nature can be drawn from the fact that the resignation was accepted as a short cut. In my opinion, there is nothing wrong or illegal or improper on the part of any employer to let his workman resign and leave even after the charge of a misconduct to avoid litigation and to avoid any stigmatic order which would also be not in the interest of the workman. It is not compulsory for the employer to hold an enquiry and punish his employee if the latter peacefully and voluntarily leaves the employment. Often such short cuts are also beneficial for both. There was absolutely no valid ground and justification for the Labour Court to hold that the resignation was a forced one and therefore, amounted to illegal termination to granting an amount of Rs. 1,25,000/- as compensation in lieu of reinstatement. The Labour Court has rightly commented that the conduct of the workman was not like a man of ordinary prudence. Any man of ordinary prudence, even a peon like the respondent workman would raise an alarm or protest as soon as he had received a letter from respondent company that his resignation was accepted. He would have immediately approached some authority or his union or the Government labour officer to say that he had never resigned but his resignation was taken forcibly or that his signature was taken on blank papers. In spite of its correct appreciation of evidence by the Labour Court, I fail to understand how the Labour Court has in the later portion of its award accepted the theory of forced resignation. There is absolutely no merit in the case of the workman."

29. Bearing in mind the attendant facts and circumstances of the case as well oral and the documentary evidence as well and after considering the final arguments, my inference is that the services of the workman have not been terminated illegally rather the petitioner had submitted resignation voluntarily.

30. Moreso, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that resignation can be withdrawn at any time, the withdrawal of the resignation by the claimant is a valid and she continues to be in service of the management. In my opinion this argument is on the fact of it false since the resignation of the claimant dated 21.02.2020, was duly accepted on the same day and it has become final and it cannot be withdrawn on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in Raj Kumar Vs. UOI, AIR 1969 SC 180, decided on 18.04.1968 wherein it was held that :

"when a person has tendered his resignation his services clearly stands terminated

from the date on which the letter of resignation is accepted by the authority and in the

absence of any law or rule governing the conditions of his service to the contrary, it

will not be open to the person to withdraw his resignation after it was accepted by the

authority."

31. I am also supported by Hon'ble High Court of Delhi in Deepak Kumar Bali Vs. HMT, (2009) III LLJ, wherein it has been held as under:

"the resignation letter was considered as not spontaneous. In the present case it is not in dispute that the job of the appellant was transferable. The appellant was transferred to Pinjore but refused to join the new station and instead made representations against the same. Since the appellant did not join there was no option left with the respondent management but to start disciplinary proceedings. A very important fact to be noted is that at no stage the appellant challenged the transfer order in any legal proceedings. At the stage when the disciplinary proceedings were reaching a conclusion against the appellant, the appellant in his wisdom thought it appropriate to resign and go out of service. It was the option with the appellant to either challenge the transfer order or to contest the disciplinary proceedings but instead of challenging the transfer order the chose to resign. His resignation was accepted as the management as the management also in its wisdom thought it appropriate to let go of him and all his dues were paid. The dues sent by the respondent Management were appropriated by the appellant. The appellant having appropriated the dues, thereafter sought to rake up the issue of the resignation being under duress or pressure."

32. I also placed reliance in Gujarat State Road Transport Corporation Vs. Shankarbhai Maljibhai Sandhwa, 2006 LLR 281, it was held that :

"the resignation after it is accepted again be withdrawn and once the resignation is

accepted, no relationship of master and servant existed thereafter. "

33. Similarly, reliance is placed on Rukshana Eisa Vs. Union of India & Ors., 2008 LLR 86 of Bombay High Court, wherein it was held that :

"after valid acceptance it is not permissible to withdraw ID No. 501/06 9/10 the

resignation."

34. I am also fortified by the decision of the Hon'ble Gujarat High Court in H.M.P Engineers Ltd. Fatehnagar Vs. R. Kashi Naidu, 2010 LLR 252, wherein it is held that :

"once the workman voluntarily resigned on accepting voluntary Separation Scheme,

and it being duly accepted, he cannot later on withdraw his option."

35. For the foregoing reasons, as a binding precedent as well the distinct facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner has voluntarily resigned from service and she has not been terminated illegally by the management. The plea taken from the side of the petitioner that he was forced to tender his resignation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Accordingly, this issue is answered in negative.

ISSUE NO. 25281 राजपत्र, हिमाचल प्रदेश, 02 अगस्त 2023/11 श्रावण, 1945 36. In support of this issue no evidence has been led by the respondent, which could go to show that as to how the present claim petition is neither competent nor maintainable in the present form especially when the same has been presented before the Court in pursuance to the reference notification received from the appropriate government. The issue in question is answered in negative.

RELIEF

37. As a Sequittor, in view of my above discussion, evaluation and findings on issues no.1& 2, the merits of the claim petition of the petitioner deserves dismissal and the same is hereby dismissed. Consequently, the present reference is answered in negative as it is held that the workman/petitioner has voluntarily resigned from service and he has not been terminated illegally. He is not entitled for any sort of relief from this Court/Tribunal.

38. Let a copy of this award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.

Ordered accordingly.

Announced in the open Court today this 1st day of March, 2023.

Sd/- (RAJESH TOMAR), Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.

___________

BEFORE SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 223 of 2021

Instituted on

: 09-11-2021

Decided on : 01-03-2023

Melo Devi w/o Shri Nand Lal, r/o Village & P.O. Khillian, Tehsil Nalagarh, District Solan, . .Petitioner. H.P.

VERSUS

1. The Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P.

2. M/s Prithi Kitchen Appliances Pvt. Ltd. (Unit-III), Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. through its Managing Director. . .Respondents.

Reference petition under section 10 of the Industrial Dispute Act, 1947

For the Petitioner : Ms. Neetu Sharma, Advocate and

Shri J.C. Bhardwaj, AR.

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 25.06.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, as under:—

"Whether the demand of Smt. Melo Devi w/o Shri Nand Lal, r/o Village & PO Khillian, Tehsil Nalagarh, District Solan, HP, for her reinstatement in service before the management i.e. the Occupier/ Factory Manager, M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. after submitting his resignation as per clause-1 of the settlement dated 20.02.2020 arrived at u/s 18(1) of the Industrial Dispute Act, 1947 between the management of M/s Penguin Electronics Ltd., Nalagarh Bharatgarh Road, Village Sallewal, P.O. Bhatian, Tehsil Nalagarh, District Solan, H.P. and the representatives of the workers union and after receiving full and final amount of Rs. 2.00 Lac as per clause-2 of the said settlement, is proper and justified? If yes, what relief the above aggrieved workman is entitled to from the above management?"

2. Material facts necessary for the disposal of present reference petition as described in the statement of claim are thus that the petitioner was engaged as a Technician with M/s Prithi Kitchen Appliances Pvt. Ltd. (unit III), Village Sallewal Bharatgarh Road, Tehsil Nalagarh (hereinafter to be referred as M/s Prithi Kitchen) since 10.08.2007 and remained as such till her illegal removal from the company on 15.02.2019. As a matter of record, M/s Prithi Kitchen was taken over by the M/s Penguin Electronics Ltd. and the petitioner was pressurized by M/s Prithi Kitchen to apply for fresh recruitment with respondent and as such on 26.2.2029, the petitioner applied to the respondent company and remained as such, till she was illegally terminated by the respondent company (Penguin Electronics) on 20.02.2020 on the ground that the company is being closed. The very action of the respondent to terminate the services of the petitioner is biased, unfair and unreasonable. The respondent management had forcibly and illegally obtained the signatures of the petitioner on some blank papers and thereafter started causing interference and hindrances in the joining of the duty by saying that there is no necessity, as the company is going to be closed. The petitioner had requested the respondent company to allow her to join her duties but to no avail. The termination of the petitioner from service without affording any opportunity and conducting any domestic enquiry is illegal and not sustainable in the eyes of law.

3. In the footnote of the petition, the following prayer clause has been appended, which reads as under:

"It is therefore prayed that this Hon'ble Court may kindly be pleased to declare the so

called settlement, the coercive, resignation and termination null, void and inoperative

by the respondent on 20.2.2020 and allow the petition of the petitioner /claimant

thereby directing the respondent/management to reinstate the services of the

claimant/petitioner in the respondent company with full back-wages, seniority and

other consequential service benefits throughout with costs."

4. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, full and final settlement arrived at between the parties, the petitioner had not approached the Court with clean hands, claim is bad in the eyes of law, not a legal reference, mis-joinder of necessary parties and the petitioner has tendered her resignation, which was duly accepted by the respondent and a sum of Rs. 2 lacs has been disbursed as full & final settlement amount to the petitioner.

5. On merits, it is submitted that the respondent company had purchased the plant and machines from its erstwhile previous owner M/s Prithi Kitchen. As per the agreement, the respondent was ready to retain the petitioner along-with other workers, in consequences of conciliation meetings held and settlement arrived between the respondent company and workers on 15.02.2019. As per the settlement, it was agreed upon that the workers who were interested to work shall resign from the previous company after receiving all the financial benefits and thereafter join the respondent company along-with other workers, as such, the petitioner had joined as a fresh recruit with the respondent company since 15.02.2019, after receiving full & final financial benefits from the previous company i.e M/s Prithi Kitchen. However, the workers who were not interested to work with the respondent company shall get three months' notice period wages, retrenchment benefits, as per section 25-F of the Act, gratuity and all the financial benefits, as are applicable to them at the time of full and final settlement. With the passage of time, the respondent company found it difficult to run the unit, as the situation deteriorated within no time and the production had gone down drastically. The respondent company offered its employees/workers to transfer some of them to some other unit but the petitioner was not ready and through their representatives recognized workers union (INTUC) represented by its office bearers under the guidelines of the Baba Hardeep Singh entered into a settlement with the authorized representatives of the respondent company on 20.02.2020. As per this settlement, the respondent company had agreed to pay the consolidate sum of `2,00,000/- (Two Lacs) to each and every worker. It is denied that the petitioner was, in any manner, forced to tender the resignation. It is also denied that the signatures of the petitioner on blank papers were obtained. In fact, the petitioner and other co-workers had voluntarily tendered their resignation as per the settlement dated 20.02.2020 and received the full & final financial dues as applicable to them as per the settlement. It is, therefore prayed, that the claim petition may kindly be dismissed in the interest of justice.

6. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and reaffirmed and reiterated those raised in the claim petition. It is averred that the resignation was taken from the petitioner forcibly, illegally and also by misrepresentation of the true facts. It is denied that the present reference is not legal reference and the claim petition was filed beyond the terms of reference.