Himachal Pradesh Gazette, No. 121, 12 September 2023

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राजपत्र, हिमाचल प्रदेश हिमाचल प्रदेश राज्य शासन द्वारा प्रकाशित मंगलवार, 12 सितम्बर, 2023/21 भाद्रपद, 1945

हिमाचल प्रदेश सरकार

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Dated, the 3rd July, 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 121—राजपत्र/2023-12-09-2023 (6377)6378 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 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, Sd/- (AKSHAY SOOD), Secretary (Lab. & Emp.).

___________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 89 of 2022

Instituted on : 21-02-2022

Decided on : 03-05-2023

Rekha Devi w/o Shri Munish Sharma, r/o Village and P.O. Majherna, Tehsil Baijnath, . .Petitioner. District Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents.

Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 28.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Smt. Rekha Devi w/o Shri Munish Sharma, r/o Village and

P.O. Majherna, Tehsil Baijnath, District Kangra, H.P., for her reinstatement in

service w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson &

Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving

her full and final amounting to `25,17,202/- is proper and justified? If yes, what relief

the above aggrieved workman is entitled to from the above management/employer?

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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 43 years and as such the chances of her re-employment are very blink and the petitioner has requested the respondent to adjust her on the analogy of other confirmed employees namely Ranjeesh Paul,6381 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid `11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,12,500/- as gratuity amount for service upto 22.12.2020 and `17,29,608/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing her services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper fit may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and her services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender her resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer her at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does6383 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,17,202/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no. 1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

ISSUE NO.1

17. 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. She has also tendered into evidence documentary proof i.e. appointment letter (PW-1/B), confirmation letter (PW-1/C), termination letter (PW-1/D), refusal to accept letter (PW-1/E), increment letter (PW-1/F), demand notice (PW-1/G), acceptance letter (PW-1/H) and offer of Probation (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that she was initially engaged as a trainee in the factory. She further admitted that after the training was over, she was engaged on probation and thereafter her services were confirmed by the respondent management. She again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. She denied that she was discharging the function of packing the material. She admitted that the factory was working properly till 2018. She denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. She admitted that 98 people in the factory who had opted for VRS. She denied that the factory was not working properly after the stoppage of supply of thread. She denied that the company had offered VRS to them. She admitted that meeting of all workers was conveyed in the factory on 21.10.2020. She admitted that there was no production in the factory after 21.10.2020. She had also feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. She admitted that she had refused to accept the details of the amount along- with termination and experience letter. She further admitted that the details of the full & final amount etc. were sent to her on her address by post. She denied that the amount of full & final settlement amount including ex-gratia was paid to her by the company. She admitted that she utilized the money for her personal work, paid by the company. She denied that the conciliation proceedings were initiated before the Labour Officer. She denied that she was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers.

Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs.11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13 years and now there are absolutely no chance of her re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The6386 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & And decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd. (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender her resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/6387 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non- payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for her re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (`Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25-FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J. K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any activity,

being an industry, is severable from the other unit or units of such

establishment or undertaking, such unit shall be deemed to be a separate

industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried on in

such establishment or undertaking or any unit thereof is an industry and the

other activity or each of the other activities carried on in such establishment or

undertaking or unit thereof is not severable from and is, for the purpose of

carrying on, or aiding the carrying on of, such predominant activity or

activities, the entire establishment or undertaking or, as the case may be, unit

thereof shall be deemed to be an industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to—

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per working day

in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section

section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.—An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, atleast sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed her/his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative6390 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 43 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. She had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. She admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. She had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. She volunteered that only 2-3 meetings were held. She again feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 19476391 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully,

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to her. She admitted that the full and final compensation amount was credited in her Bank Account and she had utilized the same for her personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, it is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder her onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that6392 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e. Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e. respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions

contained in section 2 are subject to their being anything repugnant, in the

subject or context. In view of this, it is clear that the extended meaning given to

the term 'retrenchment' under clause (oo) of section 2 is also subject to the

context and the subject matter. Section 25-F prescribes the condition precedent to

a valid retrenchment of workers as discussed earlier. Very briefly, the conditions

prescribed are the giving of one month's notice indicating the reasons for retrenchment and payment of the wages for the period of the notice. Section 25- FF provides for compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workmen who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied). Section-FFA provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under

the thin dispute of interpretation. And it is the less justifiable when it is

guesswork with what material the legislature would, if it had discovered the

gap, have filled it in. If a gap is disclosed, the remedy lies in an amending

Act",

45. 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India Versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August, 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would

apply in case of transfer of undertaking or closure thereof is the question involved in

this appeal. A plain reading of the provisions contained in Section 25FF and Section

25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply

only for the purpose of computation of compensation and for no other. The expression

"as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance.

The said term merely envisages computation of compensation in terms of Section 25F

of the 1947 Act and not the other consequences flowing there from. Both Section 25FF

and Section 25FFF provide for payment of compensation only, in case of transfer or

closure of the undertaking. Once a valid transfer or a valid closure comes into effect,

the relationship of employer and employee does not survive and ceases to exist.

Compensation is required to be paid to the workman as a consequence thereof and for

no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award for

reinstatement in service with back wages passed by the Tribunal which was affirmed

by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union, AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd. versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. and Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao versus The Union of India and Others OA No. 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable6398 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that she was forced to accept her full and final compensation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for her reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25, 17,202/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief.

Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

she had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 90 of 2022

Instituted on : 21-02-2022

Decided on : 03-05-2023

Chander Kumar s/o Shri Gian Singh, r/o Village Tahlian, P.O. Jawali, Tehsil Jawali, . .Petitioner. District Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents.

Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 13.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Chander Kumar s/o Shri Gian Singh, r/o Village

Tahlian, P.O. Jawali, Tehsil Jawali, District Kangra, H.P., for his reinstatement in

service w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson &

Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving

his full and final amounting to `24,25,147/- is proper and justified? If yes, what relief

the above aggrieved workman is entitled to from the above management/employer?

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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 37 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/ shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid `11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full &6401 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,12,500/- as gratuity amount for service upto 22.12.2020 and `17,27,379/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `24,25,147/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no. 1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the6404 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as6405 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/ transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e. Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, H.P. Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J. K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any activity,

being an industry, is severable from the other unit or units of such

establishment or undertaking, such unit shall be deemed to be a separate

industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried on in

such establishment or undertaking or any unit thereof is an industry and the

other activity or each of the other activities carried on in such establishment or

undertaking or unit thereof is not severable from and is, for the purpose of

carrying on, or aiding the carrying on of, such predominant activity or

activities, the entire establishment or undertaking or, as the case may be, unit

thereof shall be deemed to be an industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per working day

in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.--An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, atleast sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation6410 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25- FFA OF THE INDUSTRIAL DISPUTES ACT, 1947.

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully,

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar6411 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e. section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour6412 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e. two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of ` 50 lacs (` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other6413 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, it is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and the subject matter. Section 25-F prescribes the condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25- FF provides for compensation to workmen in case of transfer of undertakings. Very briefly, it provides that Every workmen who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied). Section-FFA provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there

is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India Versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August, 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have

not been closed down, cannot lead to the inference that the termination of services of

the respondent was by way of retrenchment which was illegal on account of non-

compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award for

reinstatement in service with back wages passed by the Tribunal which was affirmed

by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union, AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. and Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao versus The Union of India and Others OA No. 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles6417 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in6418 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 24,25,147/- or in alternative to enhance the compensation amount upto ` 50 lacs (` Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 91 of 2022

Instituted on : 21-02-2022

Decided on : 03-05-20236419 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Chand Lal s/o Shri Ram Lal, r/o Village Balute, P.O. Chammed, Tehsil and District . .Petitioner. Hamirpur, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents.

Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 28.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Chand Lal s/o Shri Ram Lal, r/o Village Balute, P.O.

Chammed, Tehsil and District Hamirpur, H.P., for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving his full and final

amounting to `25,26,955/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no. 2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the6420 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 39 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/ shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non-payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,21,154/- as gratuity amount for service upto 22.12.2020 and `17,89,334/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25, 26,955/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No, Not entitled to any relief

Issue No.2 No6423 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e. appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the6424 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice6425 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the peittioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days,6426 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, H.P. Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25-FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e. Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in

that undertaking immediately before such closure shall, subject to the

provisions of sub-section (2), be entitled to notice and compensation in

accordance with the provisions of section 25F, as if the workman had been

retrenched:

Provided that where the undertaking is closed down on account of

unavoidable circumstances beyond the control of the employer, the

compensation to be paid to the workman under clause (b) of section 25F shall

not exceed his average pay for three months.

Explanation.--An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, atleast sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to6429 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 19476430 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully,

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that6431 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter-V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no. 2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions

contained in section 2 are subject to their being anything repugnant, in the

subject or context. In view of this, It is clear that the extended meaning given to

the term 'retrenchment' under clause (oo) of section 2 is also subject to the

context and the subject matter. Section 25-F prescribes the condition precedent to

a valid retrenchment of workers as discussed earlier. Very briefly, the conditions

prescribed are the giving of one month's notice indicating the reasons for

Retrenchment and payment of the wages for the period of the notice. Section 25-

FF provides

For compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workmen who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied). Section-FFA provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers, AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August, 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would

apply in case of transfer of undertaking or closure thereof is the question involved in

this appeal. A plain reading of the provisions contained in Section 25FF and Section

25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply

only for the purpose of computation of compensation and for no other. The expression

"as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance.

The said term merely envisages computation of compensation in terms of Section 25F

of the 1947 Act and not the other consequences flowing there from. Both Section 25FF

and Section 25FFF provide for payment of compensation only, in case of transfer or

closure of the undertaking. Once a valid transfer or a valid closure comes into effect,

the relationship of employer and employee does not survive and ceases to exist.

Compensation is required to be paid to the workman as a consequence thereof and for

no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd. versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao versus The Union of India and Others OA No. 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable6437 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25, 26,955/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 92 of 2022

Instituted on : 21-02-2022

Decided on : 03-05-2023

Hemlata Thakur w/o Shri Jitender Singh, r/o Village Papahan, P.O. Jonkha Ratial, Tehsil . .Petitioner. Jawali, District Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents.

Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 28.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Smt. Hemlata Thakur w/o Shri Jitender Singh, r/o Village

Papahan, P.O. Jonkha Ratial, Tehsil Jawali, District Kangra, H.P. for her

reinstatement in service w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s

Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP

after receiving her full and final amounting to `25,13,053/- is proper and justified? If

yes, what relief the above aggrieved workman is entitled to from the above

management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of ` 3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 36 years and as such the chances of her re-employment are very blink and the petitioner has requested the respondent to adjust her on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/ shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non-payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full &6440 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `17,81,757/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing her services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and her services were governed by the Act, Rules and Standing Orders as well as terms6441 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender her resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer her at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,13,053/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no. 1 No, Not entitled to any relief

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. She has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), confirmation letter (PW-1/C), termination letter (PW-1/D), refusal to accept letter (PW-1/E), increment letter (PW-1/F), demand notice (PW-1/G), acceptance letter (PW-1/H) and offer of Probation (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that she was initially engaged as a trainee in the factory. She further admitted that after the training was over, she was engaged on probation and thereafter her services were confirmed by the respondent management. She again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. She denied that she was discharging the function of packing the material. She admitted that the factory was working properly till 2018. She denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. She admitted that 98 people in the factory who had opted for VRS. She denied that the factory was not working properly after the stoppage of supply of thread. She denied that the company had offered VRS to them. She admitted that meeting of all workers was conveyed in the6443 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 factory on 21.10.2020. She admitted that there was no production in the factory after 21.10.2020. She had also feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. She admitted that she had refused to accept the details of the amount along- with termination and experience letter. She further admitted that the details of the full & final amount etc. were sent to her on her address by post. She denied that the amount of full & final settlement amount including ex-gratia was paid to her by the company. She admitted that she utilized the money for her personal work, paid by the company. She denied that the conciliation proceedings were initiated before the Labour Officer. She denied that she was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as6444 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 14 years and now there are absolutely no chance of her re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in6445 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter-V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender her resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for her re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, H.P. Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking6446 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any

undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become

effective, a notice, in the prescribed manner, on the appropriate

Government stating clearly the reasons for the intended closure of the

undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.—An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, atleast sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed her/his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 36 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the6449 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. She had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. She admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. She had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. She volunteered that only 2-3 meetings were held. She again feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947.

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd."6450 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to her. She admitted that the full and final compensation amount was credited in her Bank Account and she had utilized the same for her personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of fourteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, it is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder her onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to fourteen years (14) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25-M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e. section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts6451 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter-V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs ( `Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention6452 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, it is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and the subject matter. Section 25-F prescribes the condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one month's notice indicating the reasons for retrenchment and payment of the wages for the period of the notice. Section 25- FF provides for compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workmen who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the

retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India Versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August, 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations

received from public. Due to financial stringency, the Maternity Hospital had to be

closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation

Centre, Family Planning Centre and Viklang Kendra are receiving grants from

government and are functioning as separate entities and the mere fact that they have

not been closed down, cannot lead to the inference that the termination of services of

the respondent was by way of retrenchment which was illegal on account of non-

compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award for

reinstatement in service with back wages passed by the Tribunal which was affirmed

by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd. versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. and Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu6456 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Gopal Rao versus The Union of India and Others OA No. 020/326/2020 decided on 17 July, 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible6457 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that she was forced to accept her full and final compensation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for her reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25, 13,053/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

she had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd day of May, 2023.

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

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 93 of 2022

Instituted on : 21-02-2022

Decided on : 03-05-2023

Sanjeev Kumar s/o Shri Subhash Chand, r/o Village Kathiala, P.O. Sohari, Tehsil . .Petitioner. Banganga, District Una, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents.

Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Sanjeev Kumar s/o Shri Subhash Chand r/o Village

Kathiala, P.O. Sohari, Tehsil Banganga, District Una, H.P., for his reinstatement in

service w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson &

Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, H.P. after

receiving his full and final amounting to `25,04,643/- is proper and justified? If yes,

what relief the above aggrieved workman is entitled to from the above

management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no. 2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason,6459 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 35 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/ shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non-payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,21,154/- as gratuity amount for service upto 22.12.2020 and ` 17,95,031/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure6460 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or6461 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,04,643/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no. 1 No, Not entitled to any relief

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn6463 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re-6464 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respodnent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd. (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter-V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e. Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25-FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e. Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the6466 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per working

day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2) be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.--An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, atleast sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically6468 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar6469 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully,

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an6470 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance6471 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of ` 50 lacs (` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e. respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, it is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and the subject matter. Section 25-F prescribes the condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for retrenchment and payment of the wages for the period of the notice. Section 25- FF provides. For compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workmen who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what

would happen to the rights of the employer under the Standing Orders and under

the contracts of employment in respect of the workman whose service has been

terminated. There may be two answered to this question. Firstly, those rights may

have been affected by the introduction of Section 2 (oo), 25-F and the other

relevant sections. Secondly, it may be said, the rights as such are not affected or

taken away, but only an additional social obligation has been imposed on the

employer so as to give the retrenchment benefit to the workman, perhaps for

immediate tiding over of the financial difficulty. Looked at from this angle, there

is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ;

the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under

the thin dispute of interpretation. And it is the less justifiable when it is

guesswork with what material the legislature would, if it had discovered the

gap, have filled it in. If a gap is disclosed, the remedy lies in an amending

Act",

45. 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India Versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August, 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award for

reinstatement in service with back wages passed by the Tribunal which was affirmed

by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

" It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd. versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. and Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao versus The Union of India and Others OA No. 020/326/2020 decided on 17 July, 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has6476 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25,04,643/- or in alternative to enhance the compensation amount upto `50 lacs (` Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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.

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 94 of 2022

Instituted on : 21-02-2022

Decided on : 03-05-2023

Satish Kumar s/o Shri Narain Singh, r/o Village & P.O. Kharwar, Tehsil Bhoranj, District . .Petitioner. Hamirpur, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . . Respondents.

Jharmajri, Baddi, District Solan, H.P.

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

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Satish Kumar s/o Shri Narain Singh, r/o Village & P.O.

Kharwar, Tehsil Bhoranj, District Hamirpur, H.P. for his reinstatement in service

w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd.,

58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving his full and

final amounting to ` 24,08,839/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of ` 3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 39 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 P.M. In the aforesaid notice, the petitioner was also6479 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non-payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,12,500/- as gratuity amount for service upto 22.12.2020 and `17,15,735/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by6481 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `24,08,839/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No, Not entitled to any relief.

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C),6482 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was6483 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was6484 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd. (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient6485 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J. K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, atleast sixty

days before the date on which the intended closure is to become effective, a

notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per working day

in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2) be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.--An undertaking which is closed down by reason merely of--

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, atleast sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously6488 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam,6489 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt. Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of ` 11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the6490 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e. Aurangabad, Hyderabad Plant etc. The submission made by6491 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs ( ` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e. respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, it is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes the condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides. For compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workmen who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied). Section-FFA provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF

provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re- employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under

the thin dispute of interpretation. And it is the less justifiable when it is

guesswork with what material the legislature would, if it had discovered the

gap, have filled it in. If a gap is disclosed, the remedy lies in an amending

Act",

45. 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India Versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August, 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon6495 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Godrej and Boyce Manufacturing Co. Ltd. versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. and Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao versus The Union of India and Others OA No. 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section6496 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 24,08,839/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 95 of 2022

Instituted on : 21-02-2022

Decided on : 03-05-2023

Kripal Singh s/o Shri Joginder Singh, r/o Village Baranda, P.O. Baranda, Tehsil Nurpur, . .Petitioner. District Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, HP.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Kripal Singh s/o Shri Joginder Singh, r/o Village

Baranda, P.O. Baranda, Tehsil Nurpur, District Kangra H.P., for his reinstatement in

service w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson &

Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP, after

receiving his full and final amounting to ` 24,07,069/- is proper and justified? If yes,

what relief the above aggrieved workman is entitled to from the above

management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can6498 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 35 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 P.M. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non-payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,12,500/- as gratuity amount for service upto 22.12.2020 and ` 17,35,268/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure6499 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no6500 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `24,07,069/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No, Not entitled to any relief

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn6502 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re-6503 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd. (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter-V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e. Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, H.P. Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J. K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit ? Their Lordships of Hon'ble Supreme Court in para 22 of the6505 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which—

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per working day

in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2) be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.--An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has6507 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial6508 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully,

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an6509 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e. section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance6510 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e. respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer,6511 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945

Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road

Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and

Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78

reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, it is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and the subject matter. Section 25-F prescribes the condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one month's notice indicating the reasons for retrenchment and payment of the wages for the period of the notice. Section 25- FF provides. For compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workmen who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied). Section-FFA provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what

would happen to the rights of the employer under the Standing Orders and under

the contracts of employment in respect of the workman whose service has been

terminated. There may be two answered to this question. Firstly, those rights may

have been affected by the introduction of Section 2 (oo), 25-F and the other

relevant sections. Secondly, it may be said, the rights as such are not affected or

taken away, but only an additional social obligation has been imposed on the

employer so as to give the retrenchment benefit to the workman, perhaps for

immediate tiding over of the financial difficulty. Looked at from this angle, there

is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ;

the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under

the thin dispute of interpretation. And it is the less justifiable when it is

guesswork with what material the legislature would, if it had discovered the

gap, have filled it in. If a gap is disclosed, the remedy lies in an amending

Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers, AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India Versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August, 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd. versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. and Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao Versus The Union of India and Others OA No. 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder6515 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 24,07,069/- or in alternative to enhance the compensation amount upto ` 50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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.

RELIEF6516 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 96 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Manoj Singh s/o Shri Subhash Chand, r/o Village & P.O. Badhal Thore, Tehsil Dehra, . .Petitioner. District Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate6517 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 AWARD The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Manoj Singh s/o Shri Subhash Chand, r/o Village &

P.O. Badhal Thore, Tehsil Dehra, District Kangra H.P. for his reinstatement in service

w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd.,

58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving his full and

final amounting to `28,79,082/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of ` 3,200/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 41 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 P.M. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non-payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is6518 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,53,462/- as gratuity amount for service upto 22.12.2020 and `20,16,833/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The6520 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `28,79,082/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No, Not entitled to any relief

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e. appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was6521 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and6522 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd. (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e. Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (`Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as6524 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become

effective, a notice, in the prescribed manner, on the appropriate

Government stating clearly the reasons for the intended closure of the

undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2) be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.--An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been6527 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd."6528 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e. section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts such as Part V-A,6529 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for6530 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, it is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one month's notice indicating the reasons for retrenchment and payment of the wages for the period of the notice. Section 25-FF provides. For compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workmen who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied). Section-FFA provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-

employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under

the thin dispute of interpretation. And it is the less justifiable when it is

guesswork with what material the legislature would, if it had discovered the

gap, have filled it in. If a gap is disclosed, the remedy lies in an amending

Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India Versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August, 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was

functioning as a distinct entity. It was not receiving any grant from the

Government and was being run entirely on charitable basis from donations

received from public. Due to financial stringency, the Maternity Hospital had to

be closed down. The other three units, viz., Drug De-Addiction- cum-

Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving

grants from government and are functioning as separate entities and the mere

fact that they have not been closed down, cannot lead to the inference that the

termination of services of the respondent was by way of retrenchment which was

illegal on account of non-compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the

award for reinstatement in service with back wages passed by the Tribunal

which was affirmed by the High Court cannot be sustained and must be set

aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April, 2019 wherein it has been held as under:

" It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union, AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd. versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision6534 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/s Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao versus The Union of India and Others OA No 020/326/2020 decided on 17 July, 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So,6535 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 28,79,082/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 97 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Anil Kumar s/o Shir Dharam Chand, r/o Village Ghatta, P.O. Dhamer, Tehsil & District . .Petitioner. Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Anil Kumar s/o Shir Dharam Chand r/o Village Ghatta,

PO Dhamer, Tehsil & District Kangra, HP for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving his full and final

amounting to `25,12,202/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can6537 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 34 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non-payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,21,154/- as gratuity amount for service upto 22.12.2020 and ` 17,92,074/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure6538 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no6539 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,12,202/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn6541 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re-6542 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd. (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire6543 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e. Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, H.P. Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to6544 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment

or undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per working

day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2) be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.--An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such6546 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever6547 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his6548 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be6549 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e. Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of ` 50 lacs (` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road6550 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and the subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides. For compensation to workmen in case of transfer of undertakings. Very briefly, it provides that Every workmen who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched" (Emphasis Supplied ). Section-FFA provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what

would happen to the rights of the employer under the Standing Orders and under

the contracts of employment in respect of the workman whose service has been

terminated. There may be two answered to this question. Firstly, those rights may

have been affected by the introduction of Section 2 (oo), 25-F and the other

relevant sections. Secondly, it may be said, the rights as such are not affected or

taken away, but only an additional social obligation has been imposed on the

employer so as to give the retrenchment benefit to the workman, perhaps for

immediate tiding over of the financial difficulty. Looked at from this angle, there

is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ;

the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers, AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union, AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd. versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/s Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA No. 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the6554 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25,12,202/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that6555 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 98 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Narad Ram s/o Shri Bhola Ram, r/o Village Belu, PO Khaneal Bangra, Tehsil Karson, District Mandi, H.P. (The name of District has been wrongly mentioned in the reference . .Petitioner. notification)

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate6556 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 AWARD The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Narad Ram s/o Shri Bhola Ram, r/o Village Belu, PO

Khaneal Bangra, Tehsil Karson, District Mandi, HP, for his reinstatement in service

w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd.,

58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving his full and

final amounting to `25,35,801/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of ` 3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 36 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is6557 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `18,04,780/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit. 9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The6559 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,35,801/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No. Not entitled to any relief.

Issue No. 2 No

Relief. Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent6560 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee,6561 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termiantion letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termiantion letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimiantion in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respodnent, were not given to the petitioner as the petitoner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the peittioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admitedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record. 29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examiantion of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admitedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to6563 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka)"industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any activity,

being an industry, is severable from the other unit or units of such

establishment or undertaking, such unit shall be deemed to be a separate

industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried on in

such establishment or undertaking or any unit thereof is an industry and the

other activity or each of the other activities carried on in such establishment or

undertaking or unit thereof is not severable from and is, for the purpose of

carrying on, or aiding the carrying on of, such predominant activity or

activities, the entire establishment or undertaking or, as the case may be, unit

thereof shall be deemed to be an industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in

that undertaking immediately before such closure shall, subject to the

provisions of sub-section

(2) be entitled to notice and compensation in accordance with the provisions of

section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of

unavoidable circumstances beyond the control of the employer, the

compensation to be paid to the workman under clause (b) of section 25F shall

not exceed his average pay for three months.

Explanation.--An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting6566 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21 day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21" December 2020 for the reason's explained6567 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/ shifted/ accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25-6568 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of ` 50 lacs (` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act.

43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so. 44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions

contained in section 2 are subject to their being anything repugnant, in the

subject or context. In view of this, It is clear that the extended meaning given to

the term 'retrenchment' under clause (oo) of section 2 is also subject to the

context and The subject matter. Section 25-F prescribes The condition precedent

to a valid retrenchment Of workers as discussed earlier. Very briefly, The

conditions prescribed are the giving of one month's notice indicating the reasons

for Retrenchment and payment of the wages for the period of the notice. Section

25-FF provides

For compensation to workmen in case of transfer Of undertakings. Very

briefly, it provides that Every workmen who has been in continuous Service for

not less than one year in an undertaking immediately before such transfer shall

be entitled to notice and compensation in accordance with the provisions of

section 25-F "as if the workman had been retrenched"(Emphasis Supplied ).

Section-FFA Provides that sixty day's notice must be given of intention to close

down any undertaking and section 25-FFF provides for compensation to

workman in case of closing down of undertakings. Very briefly stated section 25-

FFF

Which has been already discussed lays down that "where an undertaking is

closed down for any reason whatsoever, every workman who has been in

continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment Is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in6571 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the

employer is not closed down but only a unit or undertaking is closed down which has

no functional integrity with other units or undertaking, the provisions of Section

25FFF of the Act will get attracted and the workmen are only entitled to compensation

as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 3166573 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it6574 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25,35,801/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 99 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Roshan Lal s/o Late Shri Balak Ram, r/o Village Sangri, PO Malau, Tehsil Sundernagar . .Petitioner. District Mandi, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Roshan Lal s/o Late Shri Balak Ram, r/o Village Sangri,

P.O. Malau, Tehsil Sundernagar District Mandi, H.P., for his reinstatement in service

w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd.,

58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, H.P. after receiving his full and

final amounting to `25,10,784/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can6576 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 36 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `18,05,705/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure6577 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no6578 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,10,784/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief.

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e. appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn6580 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re-6581 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e. Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the6583 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in

that undertaking immediately before such closure shall, subject to the

provisions of sub-section

(2) be entitled to notice and compensation in accordance with the provisions of

section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of

unavoidable circumstances beyond the control of the employer, the

compensation to be paid to the workman under clause (b) of section 25F shall

not exceed his average pay for three months.

Explanation.--An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become6585 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the6586 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the6587 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in6588 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e. Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking.

Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides. For compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re- employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what

would happen to the rights of the employer under the Standing Orders and under

the contracts of employment in respect of the workman whose service has been

terminated. There may be two answered to this question. Firstly, those rights may

have been affected by the introduction of Section 2 (oo), 25-F and the other

relevant sections. Secondly, it may be said, the rights as such are not affected or

taken away, but only an additional social obligation has been imposed on the

employer so as to give the retrenchment benefit to the workman, perhaps for

immediate tiding over of the financial difficulty. Looked at from this angle, there

is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ;

the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award for

reinstatement in service with back wages passed by the Tribunal which was affirmed

by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union, AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply6593 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25,10,784/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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.

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 100 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Pulkit Sood s/o Shri Tilak Raj, r/o Village and P.O. Khaira, Tehsil Palampur, District . .Petitioner. Kangra H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Pulkit Sood s/o Shri Tilak Raj, r/o Village and P.O.

Khaira, Tehsil Palampur, District Kangra, H.P., for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving his full and final

amounting to `24,36,684/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 36 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the6596 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,12,500/- as gratuity amount for service upto 22.12.2020 and `17,43,840/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by6598 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `24,36,684/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)6599 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had6600 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termiantion letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitoner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final6601 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examiantion of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent6602 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,—

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to—

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section

(2) be entitled to notice and compensation in accordance with the provisions of

section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.--An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the6605 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:—

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B,6606 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs ( ` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the6608 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides. For compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re- employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in6610 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will

amount to closure within the meaning of Section 25FFF of the Act. In J.K.

Synthetics v. Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been

observed that the closure need not be of the entire plant. A closure can also be of a

part of the plant. In Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it

was held as under in Para 21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment

of the employer is not closed down but only a unit or undertaking is closed down

which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non-compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees6612 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 24,36,684/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 101 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Umesh Kumar s/o Shri Pritam Singh, r/o Village and PO Ambota, Tehsil Chonari (Kaloh), . .Petitioner. District Una, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Umesh Kumar s/o Shri Pritam Singh, r/o Village and

P.O. Ambota, Tehsil Chonari (Kaloh), District Una, H.P., for his reinstatement in

service w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson &

Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving

his full and final amounting to ` 25,77,887/- is proper and justified? If yes, what relief

the above aggrieved workman is entitled to from the above management/employer?

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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of6615 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 39 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,21,154/- as gratuity amount for service upto 22.12.2020 and `18,37,210/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the6616 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of ` 50,00,000/-

on the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no6617 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,77,887/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief.

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn6619 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re-6620 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termiantion letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire6621 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to6622 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers

and employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any activity,

being an industry, is severable from the other unit or units of such

establishment or undertaking, such unit shall be deemed to be a separate

industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried on in

such establishment or undertaking or any unit thereof is an industry and the

other activity or each of the other activities carried on in such establishment or

undertaking or unit thereof is not severable from and is, for the purpose of

carrying on, or aiding the carrying on of, such predominant activity or

activities, the entire establishment or undertaking or, as the case may be, unit

thereof shall be deemed to be an industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to—

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2) be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of

unavoidable circumstances beyond the control of the employer, the compensation

to be paid to the workman under clause (b) of section 25F shall not exceed his

average pay for three months.

Explanation.--An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such6624 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever6625 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under: —

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020. To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less6626 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which6627 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of ` 50 lacs (` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and6628 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides. For compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re- employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what

would happen to the rights of the employer under the Standing Orders and under

the contracts of employment in respect of the workman whose service has been

terminated. There may be two answered to this question. Firstly, those rights may

have been affected by the introduction of Section 2 (oo), 25-F and the other

relevant sections. Secondly, it may be said, the rights as such are not affected or

taken away, but only an additional social obligation has been imposed on the

employer so as to give the retrenchment benefit to the workman, perhaps for

immediate tiding over of the financial difficulty. Looked at from this angle, there

is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ;

the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :—

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non-compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the6632 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25,77,887/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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.

RELIEF6633 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 102 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Rakesh Kumar s/o Shri Julfi Ram, r/o Village & PO Thandol, Tehsil Palampur, District . .Petitioner. Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate6634 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 AWARD The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Rakesh Kumar s/o Shri Julfi Ram, r/o Village & P.O.

Thandol, Tehsil Palampur, District Kangra, H.P., for his reinstatement in service

w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd.,

58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving his full and

final amounting to `24,36,415/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 37 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is6635 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,12,500/- as gratuity amount for service upto 22.12.2020 and `17,54,290/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of ` 50,00,000/-

on the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the6637 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `24,36,415/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No. 1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e. appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for6638 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control6639 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termiantion letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen6640 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945

Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel

Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing

Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010)

15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e. Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen6641 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment

or undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2) be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of

unavoidable circumstances beyond the control of the employer, the compensation

to be paid to the workman under clause (b) of section 25F shall not exceed his

average pay for three months.

Explanation.--An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd."6645 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A,6646 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs ( ` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for6647 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no. 2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides for compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the

section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under

the thin dispute of interpretation. And it is the less justifiable when it is

guesswork with what material the legislature would, if it had discovered the

gap, have filled it in. If a gap is disclosed, the remedy lies in an amending

Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers, AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have

not been closed down, cannot lead to the inference that the termination of services of

the respondent was by way of retrenchment which was illegal on account of non-

compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles6651 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in6652 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 24,36,415/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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.

R E L I E F

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 103 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Pankaj Rana s/o Shri Subhash Chand, r/o Village Jatoli Chakran, P.O. Chamukha, Tehsil . .Petitioner. Rakkar, District Kangra, H.P.

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Pankaj Rana s/o Shri Subhash Chand, r/o Village Jatoli

Chakran, P.O. Chamukha, Tehsil Rakkar, District Kangra, H.P., for his reinstatement

in service w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson &

Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, H.P. after

receiving his full and final amounting to `23,88,784/- is proper and justified? If yes,

what relief the above aggrieved workman is entitled to from the above

management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 366654 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,12,500/- as gratuity amount for service upto 22.12.2020 and `17,08,341/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage6656 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `23,88,784/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

ISSUE NO. 1

17. 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. He has also tendered into evidence documentary proof i.e. appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers.

Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termiantion letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The6659 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to6660 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per working

day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.—An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative6663 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under: —

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947.

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be6665 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022,6666 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e. Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of ` 50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no. 2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions

contained in section 2 are subject to their being anything repugnant, in the

subject or context. In view of this, It is clear that the extended meaning given to

the term 'retrenchment' under clause (oo) of section 2 is also subject to the

context and The subject matter. Section 25-F prescribes The condition precedent

to a valid retrenchment Of workers as discussed earlier. Very briefly, The

conditions prescribed are the giving of one month's notice indicating the reasons

for Retrenchment and payment of the wages for the period of the notice. Section

25-FF provides. For compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re- employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would

apply in case of transfer of undertaking or closure thereof is the question involved in

this appeal. A plain reading of the provisions contained in Section 25FF and Section

25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply

only for the purpose of computation of compensation and for no other. The expression

"as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance.

The said term merely envisages computation of compensation in terms of Section 25F

of the 1947 Act and not the other consequences flowing there from. Both Section 25FF

and Section 25FFF provide for payment of compensation only, in case of transfer or

closure of the undertaking. Once a valid transfer or a valid closure comes into effect,

the relationship of employer and employee does not survive and ceases to exist.

Compensation is required to be paid to the workman as a consequence thereof and for

no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the6670 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so.

Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 23,88,784/- or in alternative to enhance the compensation amount upto ` 50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in6672 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 104 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Kalpana Tanwar w/o Shri Pulkit Sood, r/o Village & P.O. Khaira, Tehsil Palampur, District . .Petitioner. Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 31.10.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Smt. Kalpana Tanwar w/o Shri Pulkit Sood, r/o Village &

PO Khaira, Tehsil Palampur, District Kangra, HP, for her reinstatement in service

w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd.,

58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving her full and

final amounting to `25,30,301/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of ` 3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 39 years and as such the chances of her re-employment are very blink and the petitioner has requested the respondent to adjust her on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/ shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid6674 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 ` 1,21,154/- as gratuity amount for service upto 22.12.2020 and `18,14,473/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing her services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and her services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any6675 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender her resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer her at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to ` 25,30,301/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief.

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. She has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), confirmation letter (PW-1/C), termination letter (PW-1/D), refusal to accept letter (PW-1/E), increment letter (PW-1/F), demand notice (PW-1/G), acceptance letter (PW-1/H) and offer of Probation (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that she was initially engaged as a trainee in the factory. She further admitted that after the training was over, she was engaged on probation and thereafter her services were confirmed by the respondent management. She again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. She denied that she was discharging the function of packing the material. She admitted that the factory was working properly till 2018. She denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. She admitted that 98 people in the factory who had opted for VRS. She denied that the factory was not working properly after the stoppage of supply of thread. She denied that the company had offered VRS to them. She admitted that meeting of all workers was conveyed in the factory on 21.10.2020. She admitted that there was no production in the factory after 21.10.2020. She had also feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. She admitted that she had refused to accept the details of the amount along- with termination and experience letter. She further admitted that the details of the full & final6677 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 amount etc. were sent to her on her address by post. She denied that the amount of full & final settlement amount including ex-gratia was paid to her by the company. She admitted that she utilized the money for her personal work, paid by the company. She denied that the conciliation proceedings were initiated before the Labour Officer. She denied that she was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13 years and now there are absolutely no chance of her re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admitedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter,6679 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender her resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for her re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law6680 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers

and employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the terms

of employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any activity,

being an industry, is severable from the other unit or units of such

establishment or undertaking, such unit shall be deemed to be a separate

industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried on in

such establishment or undertaking or any unit thereof is an industry and the

other activity or each of the other activities carried on in such establishment or

undertaking or unit thereof is not severable from and is, for the purpose of

carrying on, or aiding the carrying on of, such predominant activity or

activities, the entire establishment or undertaking or, as the case may be, unit

thereof shall be deemed to be an industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.—An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25-6682 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed her/his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 39 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was6683 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. She had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. She admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. She had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. She volunteered that only 2-3 meetings were held. She again feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:—

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947.

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

To The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/ accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to her. She6684 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 admitted that the full and final compensation amount was credited in his Bank Account and she had utilized the same for her personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of fourteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, it is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder her onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different6685 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no. 2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no. 2. Admittedly, the petitioner was engaged by the respondent no.16686 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 to work in the present unit (respondent no. 2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides for compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and

compensation in accordance with section 25-F. It is significant that in a case of

transfer of an undertaking or closure of an undertaking in accordance with the

aforesaid provisions, the benefit specifically given to the workman is "as if the

workman had been retrenched" and this benefit is restricted to notice and

compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that she was forced to accept her full and final compensation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for her reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25, 30,301/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

she had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd day of May, 2023.

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

___________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 106 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Sharvan Kumar s/o Shri Amar Lal, r/o Village Bhadwal, P.O. Matour, Tehsil Dharamshala, . .Petitioner. District Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 17.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Sharvan Kumar s/o Shri Amar Lal, r/o Village

Bhadwal, P.O. Matour, Tehsil Dharamshala, District Kangra, H.P., for his

reinstatement in service w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s

Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP

after receiving his full and final amounting to ` 25,06,330/- is proper and justified? If

yes, what relief the above aggrieved workman is entitled to from the above

management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 37 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad,6693 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid `11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `17,75,193/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated6695 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to ` 25,06,330/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No, Not entitled to any relief.

Issue No.2 No

Relief. Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers.

Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termiantion letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The6698 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to6699 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J. K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become

effective, a notice, in the prescribed manner, on the appropriate

Government stating clearly the reasons for the intended closure of the

undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.--An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in6702 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947.

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

To The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and6704 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022,6705 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no. 2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no. 2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions

contained in section 2 are subject to their being anything repugnant, in the

subject or context. In view of this, It is clear that the extended meaning given to

the term 'retrenchment' under clause (oo) of section 2 is also subject to the

context and The subject matter. Section 25-F prescribes The condition precedent

to a valid retrenchment Of workers as discussed earlier. Very briefly, The

conditions prescribed are the giving of one month's notice indicating the reasons

for Retrenchment and payment of the wages for the period of the notice. Section

25-FF provides for compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect,

the relationship of employer and employee does not survive and ceases to exist.

Compensation is required to be paid to the workman as a consequence thereof and for

no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court6709 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section6710 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25,06,330/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 107 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Padam Nabh s/o Shri Mool Raj, r/o Village Doh, P.O. Rewalsar, Tehsil Blah, District Mandi, H.P. (The name of the district of the petitioner has been wrongly mentioned in the reference . .Petitioner . itself).

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 17.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Padam Nabh s/o Shri Mool Raj, r/o Village Doh, P.O

Rewalsar, Tehsil Blah, District Mandi, H.P., for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, H.P. after receiving his full and final

amounting to `25,11,202/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of ` 3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 40 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `17,80,652/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government,6714 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:—

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,11,202/- is6715 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief.

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the6716 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had6718 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs ( `Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the6719 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,—

(a) if any unit of such establishment or undertaking carrying on any activity,

being an industry, is severable from the other unit or units of such

establishment or undertaking, such unit shall be deemed to be a separate

industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried on in

such establishment or undertaking or any unit thereof is an industry and the

other activity or each of the other activities carried on in such establishment or

undertaking or unit thereof is not severable from and is, for the purpose of

carrying on, or aiding the carrying on of, such predominant activity or

activities, the entire establishment or undertaking or, as the case may be, unit

thereof shall be deemed to be an industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.—An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio6721 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position6722 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

To The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after6723 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of6724 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e. respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced6725 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides. For compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re- employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this

benefit is restricted to notice and compensation in accordance with the provisions

of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and6729 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25,11,202/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 26730 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

_________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 108 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Gulab Singh s/o Shri Sher Singh, r/o Village & P.O. Bhargaon, Tehsil Kotli, District Mandi, . .Petitioner. H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 17.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Gulab Singh s/o Shri Sher Singh r/o Village & P.O.

Bhargaon, Tehsil Kotli, District Mandi, H.P., for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving his full and final

amounting to `25,12,830/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 39 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,21,154/- as gratuity amount for service upto 22.12.2020 and `17,86,056/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of ` 50,00,000/-

on the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:—

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to ` 25, 12,830/- is proper and justified? If yes, what relief the petitioner is entitled to . .OPP. from the respondent, and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No. Not entitled to any relief.

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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 categorically6735 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 reiterated almost all the averments, made thereto in the claim petition. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J).

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur6736 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termiantion letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termiantion letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimiantion in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respodnent, were not given to the petitioner as the petitoner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the peittioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admitedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examiantion of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admitedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisoins of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient6738 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/ unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per working day

in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.—

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.—An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within the

meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the6741 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21 day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B,6742 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 EPIP Jharmajri, Baddi, Distt Solan, with effect from 21" December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25-6743 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act.

43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:—

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides. for compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re- employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the6746 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under: "The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :—

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the

employer is not closed down but only a unit or undertaking is closed down which has

no functional integrity with other units or undertaking, the provisions of Section

25FFF of the Act will get attracted and the workmen are only entitled to compensation

as provided in Section 25FFF of the Act which has to be calculated in accordance with

Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding

that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-

Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving6748 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in6749 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of `25, 12,830/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 109 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Ajay Kumar s/o Shri Karam Singh r/o Village Barian, P.O. Bhaloun, Tehsil Banganga, …Petitioner. District Una, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 17.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Ajay Kumar s/o Shri Karam Singh, r/o Village Barian,

P.O. Bhaloun, Tehsil Banganga, District Una H.P., for his reinstatement in service

w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd.,

58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving his full and

final amounting to `25,37,133/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can6751 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 38 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid `11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `18,81,677/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure6752 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or6753 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25, 37,133/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B),6755 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these6756 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire6757 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (`Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e. Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/ unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the6758 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:—

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.--An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and6760 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever6761 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

To The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My6762 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e. section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the6763 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides. For compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25-FFF. Which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re- employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under: "The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would

apply in case of transfer of undertaking or closure thereof is the question involved in

this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:—

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its

adjudication to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable6768 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of `25,37,133/- or in alternative to enhance the compensation amount upto ` 50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 110 of 2022

Instituted on : 22-02-2022

Decided on : 03-05-2023

Umesh Kumar s/o Shri Prakash Chand, r/o Village and P.O. Tikkar, Tehsil Nerchowk . .Petitioner. District Mandi, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 14.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Umesh Kumar s/o Shri Prakash Chand, r/o Village and

PO Tikkar, Tehsil Nerchowk District Mandi, HP, for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving his full and final

amounting to `25,21,133/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 41 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid `11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every6771 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `17,91,969/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any6772 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,21,133/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement6774 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termiantion letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the peittioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had6776 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (`Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the6777 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J. K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.—An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section6779 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was6780 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947.

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/ accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the6782 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e. Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally6783 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:—

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides for compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the

workman had been retrenched" and this benefit is restricted to notice and

compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and6787 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25,21,133/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 26788 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 111 of 2022

Instituted on : 23-02-2022

Decided on : 03-05-2023

Sunny Kumar s/o Shri Jagdish Chand, r/o Village Kuther, P.O. Dhanotu, Tehsil Shahpur, . .Petitioner. District Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 28.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Sunny Kumar s/o Shri Jagdish Chand, r/o Village

Kuther, P.O. Dhanotu, Tehsil Shahpur, District Kangra, H.P., for his reinstatement in

service w.e.f. 21.12.2020 before the Occupier/Factory Manager M/s Johnson &

Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after

receiving his full and final amounting to `23,92,985/- is proper and justified? If yes,

what relief the above aggrieved workman is entitled to from the above

management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 34 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,12,500/- as gratuity amount for service upto 22.12.2020 and `17,03,600/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct6792 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to ` 23,92,985/- is proper and justified? If yes, what relief the petitioner is entitled to . .OPP. from the respondent, and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into6793 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri6794 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respodnent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (`Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient6796 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e. Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment

or undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or

units of such establishment or undertaking, such unit shall be deemed

to be a separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities

carried on in such establishment or undertaking or any unit

thereof is an industry and the other activity or each of the other

activities carried on in such establishment or undertaking or unit

thereof is not severable from and is, for the purpose of carrying on,

or aiding the carrying on of, such predominant activity or

activities, the entire establishment or undertaking or, as the case

may be, unit thereof shall be deemed to be an industrial

establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become

effective, a notice, in the prescribed manner, on the appropriate

Government stating clearly the reasons for the intended closure of the

undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously6799 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B,6800 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/ accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25-6801 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act.

43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:—

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides for compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if

the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation6804 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the

employer is not closed down but only a unit or undertaking is closed down which has

no functional integrity with other units or undertaking, the provisions of Section

25FFF of the Act will get attracted and the workmen are only entitled to compensation

as provided in Section 25FFF of the Act which has to be calculated in accordance with

Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding

that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-

Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving6806 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in6807 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 23,92,985/- or in alternative to enhance the compensation amount upto ` 50 lacs (` Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 112 of 2022

Instituted on : 23-02-2022

Decided on : 03-05-2023

Yuvraj s/o Shri Sardari Lal, r/o Village and P.O. Salari Thakur Dwara, Tehsil & District . .Petitioner. Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 28.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Yuvraj S/o Shri Sardari Lal R/o Village and P.O Salari

Thakur Dwara, Tehsil & District Kangra, HP, for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving his full and final

amounting to `25,23,133/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act,6809 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 36 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid `11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `18,04,177/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty6810 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,23,133/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief.

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn6813 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re-6814 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the6816 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment

or undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.—An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically6818 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar6819 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

To The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/ accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and6820 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e. section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At6821 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer,6822 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945

Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road

Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and

Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78

reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides for compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what

would happen to the rights of the employer under the Standing Orders and under

the contracts of employment in respect of the workman whose service has been

terminated. There may be two answered to this question. Firstly, those rights may

have been affected by the introduction of Section 2 (oo), 25-F and the other

relevant sections. Secondly, it may be said, the rights as such are not affected or

taken away, but only an additional social obligation has been imposed on the

employer so as to give the retrenchment benefit to the workman, perhaps for

immediate tiding over of the financial difficulty. Looked at from this angle, there

is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ;

the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers, AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :—

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non-compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply6826 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of `25,23,133/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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.

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 113 of 2022

Instituted on : 23-02-2022

Decided on : 03-05-2023

Amar Chand s/o Late Shri Jindu Ram, r/o Village Bhosh, P.O. Haripur, Tehsil and District . .Petitioner. Kullu, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, HP.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate6828 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 AWARD The following reference petition has been, received from the Appropriate Government vide notification dated 28.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Amar Chand s/o late Shri Jindu Ram r/o Village Bhosh,

P.O. Haripur, Tehsil and District Kullu, H.P., for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving his full and final

amounting to `25,13,225/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 36 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is6829 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid `11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,21,154/- as gratuity amount for service upto 22.12.2020 and `18,21,455/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the6831 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,13,225/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief.

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent6832 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee,6833 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitoner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (`Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as6835 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at

least sixty days before the date on which the intended closure is to become

effective, a notice, in the prescribed manner, on the appropriate

Government stating clearly the reasons for the intended closure of the

undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which—

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in

that undertaking immediately before such closure shall, subject to the

provisions of sub-section (2), be entitled to notice and compensation in

accordance with the provisions of section 25F, as if the workman had been

retrenched:

Provided that where the undertaking is closed down on account of

unavoidable circumstances beyond the control of the employer, the

compensation to be paid to the workman under clause (b) of section 25F shall

not exceed his average pay for three months.

Explanation.—An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting6838 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained6839 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25-6840 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act.

43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides for compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if

the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation6843 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :—

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the

employer is not closed down but only a unit or undertaking is closed down which has

no functional integrity with other units or undertaking, the provisions of Section

25FFF of the Act will get attracted and the workmen are only entitled to compensation

as provided in Section 25FFF of the Act which has to be calculated in accordance with

Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding

that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-

Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision6845 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand, which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So,6846 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25,13,225/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 114 of 2022

Instituted on : 23-02-2022

Decided on : 03-05-2023

Kiran Bala w/o Shri Sunil Dutt, r/o Village Lingwin, P.O. Dhaned, Tehsil & District . .Petitioner . Hamirpur, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 28.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Smt. Kiran Bala w/o Shri Sunil Dutt, r/o Village Lingwin, Po

Dhaned Tehsil & District Hamirpur, HP, for her reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving her full and final

amounting to `25,56,622/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act,6848 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 39 years and as such the chances of her re-employment are very blink and the petitioner has requested the respondent to adjust her on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/ shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid `11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `18,36,776/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing her services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty6849 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and her services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender her resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer her at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25, 56,622/- is proper and justified? If yes, what relief the petitioner is entitled to . .OPP. from the respondent, and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no. 1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. She has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), confirmation letter (PW-1/C), termination letter (PW-1/D), refusal to accept letter (PW-1/E), increment letter (PW-1/F), demand notice (PW-1/G), acceptance letter (PW-1/H) and offer of Probation (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that she was initially engaged as a trainee in the factory. She further admitted that after the training was over, she was engaged on probation and thereafter her services were confirmed by the respondent management. She again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. She denied that she was discharging the function of packing the material. She admitted that the factory was working properly till 2018. She denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. She admitted that 98 people in the factory who had opted for VRS. She denied that the factory was not working properly after the stoppage of supply of thread. She denied that the company had offered VRS to them. She admitted that meeting of all workers was conveyed in the factory on 21.10.2020. She admitted that there was no production in the factory after 21.10.2020. She had also feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. She admitted that she had refused to accept the details of the amount along- with termination and experience letter. She further admitted that the details of the full & final amount etc. were sent to her on her address by post. She denied that the amount of full & final settlement amount including ex-gratia was paid to her by the company. She admitted that she utilized the money for her personal work, paid by the company. She denied that the conciliation proceedings were initiated before the Labour Officer. She denied that she was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn6852 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13 years and now there are absolutely no chance of her re-6853 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire6854 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender her resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for her re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto ` 50 lacs (`Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to6855 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers and

employers or between employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,—

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months, (b) an undertaking

set up for the construction of buildings, bridges, roads, canals,

dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.—An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion

of the minerals in the area in which such operations are carried on; shall not

be deemed to be closed down on account of unavoidable circumstances

beyond the control of the employer within the meaning of the proviso to this

sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such6857 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed her/his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 39 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. She had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. She admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. She had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. She volunteered that only 2-3 meetings were held. She again feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever6858 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to her. She admitted that the full and final compensation amount was credited in his Bank Account and she had utilized the same for her personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of fourteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, it is crystal clear that as many as 98 peoples have opted for VRS6859 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder her onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the6860 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and6861 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides for compensation to workmen in case of transfer Of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what

would happen to the rights of the employer under the Standing Orders and under

the contracts of employment in respect of the workman whose service has been

terminated. There may be two answered to this question. Firstly, those rights may

have been affected by the introduction of Section 2 (oo), 25-F and the other

relevant sections. Secondly, it may be said, the rights as such are not affected or

taken away, but only an additional social obligation has been imposed on the

employer so as to give the retrenchment benefit to the workman, perhaps for

immediate tiding over of the financial difficulty. Looked at from this angle, there

is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ;

the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :—

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that she was forced to accept her full and final compensation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for her reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of `25,56,622/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that she had any relationship of employer and employee with the respondent management. The merit's of the claim petition of the petitioner deserves dismissal and the same is hereby6866 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 115 of 2022

Instituted on : 23-02-2022

Decided on : 03-05-2023

Shyam Lal s/o Shri Budhi Singh, r/o Village Sarhandi, P.O. Dole, Tehsil Jawali, District . .Petitioner. Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, HP.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 28.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:

"Whether the demand of Shri Shyam Lal s/o Shri Budhi Singh, r/o Village Sarhandi,

P.O. Dole, Tehsil Jawali, District Kangra, H.P., for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP. after receiving his full and final

amounting to `25,00,715/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai 400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 36 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 PM. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRs scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid6868 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 `11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `18,04,635/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit an proper fit and

proper may kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,00,715/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No.1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the6871 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as6872 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termiantion letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in6873 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufacturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under section 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chaper V-A and not under Chapter V-B of the Act, therefore, the provisions of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e. Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, HP Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requsite notice as provided in prescribed Form F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking6874 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not? and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers

and employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,—

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.--An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation6877 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947.

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh, 174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at6878 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to6879 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by ordinance no. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no. 2. It is by and large that the services of the petitioner were engaged through6880 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, It is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes The condition precedent to a valid retrenchment Of workers as discussed earlier. Very briefly, The conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25-FF provides for compensation to workmen in case of transfer of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re-

employment as provided in section 25-H. In such cases, as specifically provided in

the relevant sections the workman concerned would only be entitled to notice and

compensation in accordance with section 25-F. It is significant that in a case of

transfer of an undertaking or closure of an undertaking in accordance with the

aforesaid provisions, the benefit specifically given to the workman is "as if the

workman had been retrenched" and this benefit is restricted to notice and

compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under the

thin dispute of interpretation. And it is the less justifiable when it is guesswork

with what material the legislature would, if it had discovered the gap, have filled

it in. If a gap is disclosed, the remedy lies in an amending Act",

45. Bearing in mind the attandant 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus Their workman, 1968 AIR 1002, wherein it has been held as under:

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society versus Babita Arora and Others, Appeal (Civil) NO. 3735-3738 of 2007, decided on 14 August 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union versus Lufthansa German Airlines And Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos.25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/S Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K VenuGopal Rao versus The Union of India and Others OA no 020/326/2020 decided on 17 July 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand, which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of `25,00,715/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

___________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 116 of 2022

Instituted on : 23-02-2022

Decided on : 03-05-2023

Ram Pal s/o Shri Rattan Chand, r/o Village Maskot, P.O. Naltety, Tehsil Dehra, District . .Petitioner. Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 28.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Ram Pal s/o Shri Rattan Chand, r/o Village Maskot,

P.O. Naltety, Tehsil Dehra, District Kangra, HP, for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving his full and final

amounting to `24,00,924/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 36 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 P.M. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non-payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid `11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,12,500/- as gratuity amount for service upto 22.12.2020 and `17,07,978/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct6889 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `24,00,924/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue No. 1 No, Not entitled to any relief.

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. He has also tendered into6890 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri6891 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termiantion letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimiantion in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respodnent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd. (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (`Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, H.P. Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers

and employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become

effective, a notice, in the prescribed manner, on the appropriate

Government stating clearly the reasons for the intended closure of the

undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which—

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in

that undertaking immediately before such closure shall, subject to the

provisions of sub-section (2), be entitled to notice and compensation in

accordance with the provisions of section 25F, as if the workman had been

retrenched:

Provided that where the undertaking is closed down on account of

unavoidable circumstances beyond the control of the employer, the

compensation to be paid to the workman under clause (b) of section 25F shall

not exceed his average pay for three months.

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations

are carried on; shall not be deemed to be closed down on

account of unavoidable circumstances beyond the control of the

employer within the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, at least sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 35 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. He had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. He admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. He had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. He volunteered that only 2-3 meetings were held. He again feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under: —

" Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To

The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December, 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt. Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to him. He admitted that the full and final compensation amount was credited in his Bank Account and he had utilized the same for his personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder his onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered6898 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e. section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by6899 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati versus Shri Chandrashehar Maribhan Deshmukh and Another and Etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, it is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and the subject matter. Section 25-F prescribes the condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one month's notice indicating the reasons for Retrenchment and payment of the wages for the period of the notice. Section 25- FF provides for compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to

workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under

the thin dispute of interpretation. And it is the less justifiable when it is

guesswork with what material the legislature would, if it had discovered the

gap, have filled it in. If a gap is disclosed, the remedy lies in an amending

Act",

45. 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount6901 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :—

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India Versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14th August, 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the

employer is not closed down but only a unit or undertaking is closed down which has

no functional integrity with other units or undertaking, the provisions of Section

25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April, 2019 wherein it has been held as under:

" It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others Versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd. Versus Rameshwar P. Gawade 2020 (5) SCC 3166903 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/s Wockhardt Ltd. and Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao versus The Union of India and Others OA No. 020/326/2020 decided on 17 July, 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it6904 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that he was forced to accept his full and final compensation is also not tenable under law as he has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 24,00,924/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

he had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd Day of May, 2023.

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

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 117 of 2022

Instituted on : 23-02-2022

Decided on : 03-05-2023

Kalpana Devi w/o Shri Yuvraj, r/o Village Kot, P.O. Blindi, Tehsil Karsog, District Mandi, . .Petitioner. H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 18.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Smt. Kalpana Devi w/o Shri Yuvraj, r/o Village Kot, P.O.

Blindi, Tehsil Karsog, District Mandi, HP for her reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving her full and final

amounting to `25,36,801/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can6906 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 36 years and as such the chances of her re-employment are very blink and the petitioner has requested the respondent to adjust her on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/ shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 P.M. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid `1,21,154/- as gratuity amount for service upto 22.12.2020 and `18,21,341/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing her services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure6907 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and her services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender her resignation by making a lame excuse that the undertaking has been closed. There was no6908 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 request from the side of the petitioner to transfer her at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:—

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,36,801/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No, Not entitled to any relief

Issue No. 2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1.

17. 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. She has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), confirmation letter (PW-1/C), termination letter (PW-1/D), refusal to accept letter (PW-1/E), increment letter (PW-1/F), demand notice (PW-1/G), acceptance letter (PW-1/H) and offer of Probation (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that she was initially engaged as a trainee in the factory. She further admitted that after the training was over, she was engaged on probation and thereafter her services were confirmed by the respondent management. She again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. She denied that she was discharging the function of packing the material. She admitted that the factory was working properly till 2018. She denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. She admitted that 98 people in the factory who had opted for VRS. She denied that the factory was not working properly after the stoppage of supply of thread. She denied that the company had offered VRS to them. She admitted that meeting of all workers was conveyed in the factory on 21.10.2020. She admitted that there was no production in the factory after 21.10.2020. She had also feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. She admitted that she had refused to accept the details of the amount along- with termination and experience letter. She further admitted that the details of the full & final amount etc. were sent to her on her address by post. She denied that the amount of full & final settlement amount including ex-gratia was paid to her by the company. She admitted that she utilized the money for her personal work, paid by the company. She denied that the conciliation proceedings were initiated before the Labour Officer. She denied that she was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn6910 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 14 years and now there are absolutely no chance of her re-6911 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termiantion letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitoner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd. (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admitedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire6912 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender her resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for her re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, H.P. Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its bussiness/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to6913 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers

and employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, at least

sixty days before the date on which the intended closure is to become effective,

a notice, in the prescribed manner, on the appropriate Government stating

clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per

working day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional

circumstances as accident in the undertaking or death of the employer or

the like it is necessary so to do, by order, direct that provisions of sub-

section (1) shall not apply in relation to such undertaking for such period as

may be specified in the order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to

the workman under clause (b) of section 25F shall not exceed his average pay for

three months.

Explanation.—An undertaking which is closed down by reason merely of—

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, atleast sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such6915 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed her/his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 36 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. She had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. She admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. She had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. She volunteered that only 2-3 meetings were held. She again feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever6916 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947.

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt Ltd." 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to her. She admitted that the full and final compensation amount was credited in her Bank Account and she had utilized the same for her personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of fourteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his6917 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 cross-examination, whereby, it is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder her onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to fourteen years (14) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts such as Part V-A, V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be6918 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (`Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road6919 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, it is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and the subject matter. Section 25-F prescribes the condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one month's notice indicating the reasons for retrenchment and payment of the wages for the period of the notice. Section 25- FF provides for compensation to workmen in case of transfer of undertakings. Very briefly, it provides that Every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA Provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what

would happen to the rights of the employer under the Standing Orders and under

the contracts of employment in respect of the workman whose service has been

terminated. There may be two answered to this question. Firstly, those rights may

have been affected by the introduction of Section 2 (oo), 25-F and the other

relevant sections. Secondly, it may be said, the rights as such are not affected or

taken away, but only an additional social obligation has been imposed on the

employer so as to give the retrenchment benefit to the workman, perhaps for

immediate tiding over of the financial difficulty. Looked at from this angle, there

is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ;

the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under

the thin dispute of interpretation. And it is the less justifiable when it is

guesswork with what material the legislature would, if it had discovered the

gap, have filled it in. If a gap is disclosed, the remedy lies in an amending

Act",

45. 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company Versus their workman, 1968 AIR 1002, wherein it has been held as under:

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14 August, 2007, wherein it is held that :

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non- compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside.."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23 April 2019 wherein it has been held as under:

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union, AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd. versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/s Wockhardt Ltd. and Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao versus The Union of India and Others OA No. 020/326/2020 decided on 17th July, 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice,. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the6923 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that she was forced to accept her full and final compensation is also not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for her reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of `25,36,801/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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.

RELIEF6924 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

she had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd day of May, 2023

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 118 of 2022

Instituted on : 23-02-2022

Decided on : 03-05-2023

Meena Kumari w/o Shri Vijay Kumar, r/o Village & P.O. Marwari, Tehsil Amb, District . .Petitioner. Una, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, . .Respondents. Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate6925 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 AWARD The following reference petition has been, received from the Appropriate Government vide notification dated 18.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Smt. Meena Kumari w/o Shri Vijay Kumar, r/o Village &

P.O. Marwari, Tehsil Amb, District Una, H.P., for her reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving her full and final

amounting to `25,49,122/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 37 years and as such the chances of her re-employment are very blink and the petitioner has requested the respondent to adjust her on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/ shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 P.M. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the nonpayment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner6926 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2-(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,21,154/- as gratuity amount for service upto 22.12.2020 and ` 18,11,232/- as total retiral benefits after rendering service of more than 13 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing her services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

B. That the act and conduct of the respondents of not awarding annual increment

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of ` 50,00,000/-

on the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and her services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender her resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer her at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the6928 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,49,122/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no.1 No, Not entitled to any relief

Issue No.2 No

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

REASONS FOR FINDINGS

ISSUE NO.1

17. 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. She has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), confirmation letter (PW-1/C), termination letter (PW-1/D), refusal to accept letter (PW-1/E), increment letter (PW-1/F), demand notice (PW-1/G), acceptance letter (PW-1/H) and offer of Probation (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that she was initially engaged as a trainee in the factory. She further admitted that after the training was over, she was engaged on probation and thereafter her services were confirmed by the respondent6929 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 management. She again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. She denied that she was discharging the function of packing the material. She admitted that the factory was working properly till 2018. She denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. She admitted that 98 people in the factory who had opted for VRS. She denied that the factory was not working properly after the stoppage of supply of thread. She denied that the company had offered VRS to them. She admitted that meeting of all workers was conveyed in the factory on 21.10.2020. She admitted that there was no production in the factory after 21.10.2020. She had also feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. She admitted that she had refused to accept the details of the amount along- with termination and experience letter. She further admitted that the details of the full & final amount etc. were sent to her on her address by post. She denied that the amount of full & final settlement amount including ex-gratia was paid to her by the company. She admitted that she utilized the money for her personal work, paid by the company. She denied that the conciliation proceedings were initiated before the Labour Officer. She denied that she was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers. Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee,6930 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the peitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13 years and now there are absolutely no chance of her re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termiantion letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitioner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen6931 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945

Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd (2016) 9 SCC 431, Hotel

Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing

Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd. (2010)

15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter-V-A and not under Chapter V-B of the Act, therefore, the provisons of secton 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender her resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for her re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (`Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisons of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, H.P. Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25-6932 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/ unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J.K Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers

and employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any person;

(ka) "industrial establishment or undertaking" means an establishment or

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.—

(1) An employer who intends to close down an undertaking shall serve, atleast

sixty days before the date on which the intended closure is to become

effective, a notice, in the prescribed manner, on the appropriate

Government stating clearly the reasons for the intended closure of the

undertaking:

Provided that nothing in this section shall apply to-

(a) an undertaking in which--

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per working

day in the preceding twelve months,

(b) an undertaking set up for the construction of buildings, bridges, roads,

canals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate

Government may, if it is satisfied that owing to such exceptional circumstances

as accident in the undertaking or death of the employer or the like it is

necessary so to do, by order, direct that provisions of sub-section (1) shall not

apply in relation to such undertaking for such period as may be specified in the

order.

25FFF. Compensation to workmen in case of closing down of undertakings.-

(1) Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in that

undertaking immediately before such closure shall, subject to the provisions of

sub-section (2), be entitled to notice and compensation in accordance with the

provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of

unavoidable circumstances beyond the control of the employer, the compensation

to be paid to the workman under clause (b) of section 25F shall not exceed his

average pay for three months.

Explanation.--An undertaking which is closed down by reason merely of--

(i) financial difficulties (including financial losses); or

(ii) accumulation of undisposed of stocks; or

(iii) the expiry of the period of the lease or licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations,

exhaustion of the minerals in the area in which such operations are

carried on; shall not be deemed to be closed down on account of

unavoidable circumstances beyond the control of the employer within

the meaning of the proviso to this sub-section."

34. It would be pertinent to mention that the law on the enunation of the point would be summarized in the concludery part of this award of mine.

35. Verily, as far as concerning the benevolent provisions of section 25-FFA and 25-FFF of the Act, which carries the use of an expression "Shall" thricly (3) in the provisions of section 25- FFA and the use of same expression "Shall" as many as seven times (7) in the provisions of section 25-FFF of the Act. Both these provisions of section 25-FFA and 25-FFF are couched in a proper form and non-compliance thereof is the result of rendering the order of termination void-ab-initio or non-est in the eyes of law. The salient features enumerated in section 25-FFA and 25-FFF are the conditions precedent, which lays down the procedure regarding the conditions precedent to the workman in a case of closure of an undertaking or establishment. Admittedly, section 25-F has no application to a closed or dead industry and for this purpose only the provisions of section 25-FFA and 25-FFF were inserted by the Act of 32 of 1972 w.e.f. 14.6.1972 and inserted by the Act of 18 of 1957 w.e.f. 28.11.1956. It is clearly postulated under the provisions of section 25-FFA of the Act, whenever an employer who intends to close down an undertaking or establishment shall serve, atleast sixty day's prior notice before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Similarly, section 25-FFF provides specifically that where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. It is also provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed her/his average pay for three months. Admittedly, the Industrial Tribunal has no powers to enquire into the motive of the closure in order to find out whether the closure is justified or not. The payment of compensation and wages for the notice period have not been made condition precedent to the closure. However, the liability of employer to make payment remains, which may be enforced. The term "undertaking" find mentioned in section 25-FFF of the Act is nowhere defined, however, the relevant provisions uses the relative term "industry". "Undertaking" is a concept narrower than "industry". The industrial establishment or "undertaking" means an establishment or undertaking in which any industry carried on. Section 2 (cc) provides that the "closure" means the permanent closing down of a place of employment or part thereof. Partial closure of an undertaking is also allowed. Admittedly, closure by itself involves no dispute, it is merely the abolition of the employment. Even then the employer cannot claim it as an absolute right, however, the employer is restrained with reasonable restrictions by making the payment of full & final compensation to the workman/workmen in case of closing down of the undertaking.

36. Without lamenting much on the merits of the case, I would like to dealt with all the contentions raised before me at the bar by the Ld. Counsel for the petitioner who has strenuously argued that the respondent management had only closed one of its unit and at the same time the company is running numerous units at Baddi, Telangana, Hyderabad etc., it is argued that the petitioners who have almost crossed 37 years of age and there are very blink chances of getting them into new employment. The petitioner and other similar situated workers are required to be adjusted and accommodated in the other units on the same analogy as some employees have been adjusted/accommodated at Katha Plant of Baddi, Aurangabad unit, Telangana unit etc. There was no statutory permission obtained from the Appropriate Government for closing down the unit. He argued that the mandate of law have not been followed in the letter and spirit.

37. Undoubtedly, this Tribunal has got absolutely no power to go into the question or to enquire into the issuance of notice of closure, which is merely an expression of intention of the respondent management to close down its undertaking or establishment. The only moot question which arises that whether the closure was justified or not? However, the petitioner who had appeared into the witness box had completely feigned ignorance that the Alliance Formulation Company stopped manufacturing Cat Gat thread, which was no more usable item in case of heart surgery now a days in the entire world. The petitioner had duly admitted that the thread was manufactured in Alliance Formulation Company, and it is only the finishing work which was carried out in the present factory of the respondent management. The petitioner also admitted that there was no production carried out in the factory since 21.10.2020. It is also an admitted position on the record that the factory was closed w.e.f. 21.12.2020. The petitioner admitted that the meeting of the workers was convened in the factory on 21.10.2020. She had feigned ignorance that the company had issued notice of closure under section 25-FFA of the Act. She admitted that no reply in response to section 25-FFA was filed before the Labour Officer or Labour Commissioner. She had feigned ignorance that as many as six meetings were convened/held in between 21.10.2020 to 21.12.2020 with the respondent management. She volunteered that only 2-3 meetings were held. She again feigned ignorance that she was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. In view of the aforesaid admissions on the part of the petitioner, I am of the considered opinion that the arguments advanced before me by the Ld. Counsel for the petitioner bears no merits and assumes no significance in the eyes of law. Both the contentions raised at bar and admission made by the petitioner on record are contrary to each other. There is no substantial force in the contention raised at bar that no such notice under section 25-FFA of the Act was ever issued. At the stage, I would like to re-produce the notice issued under section 25-FFA of the Act by the respondent management, which is recapitulated as under:

"Form 'W'

(See rule 81 A)

FORM OF NOTICE OF CLOSURE TO BE GIVEN BY AN EMPLOYER UNDER SECTION 25-FFA OF THE INDUSTRIAL DISPUTES ACT, 1947

Name of employer Johnson & Johnson Pvt. Ltd; Address Plot No. 52 8, EPIP Phase 1, Jharmajri, Tehsil Baddi, District Solan, Himachal Pradesh-174103; dated the 21st day of October, 2020.

To The Secretary to the Government of Himachal Pradesh, Labour Department, Shimla.

Dear Sir/Madam,

Under section 25-FFA of the Industrial Disputes Act, 1947 (14 of 1947), we hereby inform you that we have decided to close down Johnson & Johnson Pvt. Ltd., located at Plot No. 58B, EPIP Jharmajri, Baddi, Distt Solan, with effect from 21st December 2020 for the reason's explained in the annexure. The number of workmen whose services would be terminated on account of the closure of the undertaking is 93 (ninety three only).

Yours faithfully

For Johnson & Johnson Pvt. Ltd."6936 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 38. Similarly, I again find no force or strength in the arguments advanced before me by the Ld. Counsel for the petitioner that the petitioner needs to be adjusted/transferred along-with similar situated workers like Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others have been transferred/shifted/accommodated at Aurangabad plant of the respondent company. Such an argument is devoid of any force in view of the admission of the petitioner that the details of full & final payment was already paid to her. She admitted that the full and final compensation amount was credited in her Bank Account and she had utilized the same for her personal use.

39. Another limb of argument advanced before me by the Ld. Counsel for the petitioner that one Shri Thakur Dass, being junior employee of the petitioner on acceptance of VRS only after rendering three years of service paid the compensation of `11,73,742/- (Eleven Lakhs Seventy Three Thousand Seven Hundred Forty Two) as full and final settlement amount. Shri Thakur Dass was paid compensation at the rate of four months for each completed year, apart from the gratuity, early bird benefits, medical expenses, skill upgrade development etc. whereas while calculating the full & final compensation to the petitioner, the respondent management had taken into consideration two month's salary and also had not been paid anything like early bird benefits, medical expenses, skill up-grade development benefits etc. despite rendering the services of thirteen years. It is also contended that no such VRS was ever offered to the petitioner. Such an argument advanced before me by Ld. Counsel for the petitioner are again not convincing and acceptable as the same are devoid of force, in view of admission made by the petitioner in his cross-examination, whereby, it is crystal clear that as many as 98 peoples have opted for VRS before 2019. The petitioner had volunteered that it was meant for only those workers those who have less than nine years of service. The onus heavily lies on the petitioner to prove the same on record. My attention was drawn that notice was issued by the respondent management but no such notice was produced on record. By stretch of no imagination, the petitioner cannot shoulder her onus or responsibility from proving the fact that the VRS was launched for the workers those who have rendered nine years of service only. The petitioner has miserably failed to prove the same on record. However, such a feeble attempt by the petitioner to refer the case of Mr. Thakur Dass, who was one of the beneficiary of VRS Scheme and the plea raised from the side of the petitioner that such VRS Scheme was not offered to the petitioner. Admittedly, Shri Thakur Dass was one of the beneficiary of the VRS Scheme. The petitioner was the beneficiary of section 25-FFA of the Act. Both the beneficiaries are standing on the different pedestal or footings and such VRS Scheme and compensation paid under the section 25-FFF of the Act, regarding the closure of the unit cannot be at all be linked, merged or compared with each other. There is absolutely no nexus or connection in between the launch of VRS Scheme as well as the closure of any undertaking under section 25-FFF of the Act. Admittedly, VRS Scheme was launched in the year 2019 whereas notice of closure was issued in the year 2020. So, the allegations of the petitioner that Shri Thakur Dass being junior person to him has received more amount, as compared than that of the petitioner, who rendered only three years (3) of service as compared to thirteen years (13) of service rendered by the petitioner. The petitioner was paid handsome amount of compensation under various head like ex- gratia, retrenchment compensation etc. on account of full and final along-with all legal dues.

40. One more contention advanced/raised at bar by the Ld. Counsel for the petitioner that there was non-compliance of section 25-N of the Act. Similarly, the non-compliance of section 25- M, 25-O of the Act would attract the provisions of section 25-Q and 25-R to dealt the respondent company with penalty/imprisonment as provided under the Act. It is argued the termination of the services of the petitioner is nothing but "retrenchment" under section 2-oo of the Act. The relevant provisions of the Act i.e. section 25-AAA and 2-rrr were not taken into consideration. At the very out-set section 25-N is proviso to Chapter-V-B of the Act. Here, I would like to pause for a movement to clear that Chapter-V has been divided as many as into three parts such as Part V-A,6937 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 V-B and V-C, which is covering the subject "lay off and retrenchment", "special provisions relating to lay-off, retrenchment and closure in certain establishment", and "unfair labour practices", section 25-A to section 25-J of the Act, are described under Chapter V-A of the Act meant for layoff and retrenchment. On the other hand, Chapter V-B relating to the special provisions of layoff, retrenchment and closure of establishment covered section 25-K onwards to section 25-S of the Act. Chapter V-C deals with unfair labour practices covering section 25-T and section 25-O of the Act. Both the Chapters V-A and V-B of the Act are based on two different footings. And would be applicable in different and distinct situations. Both the parties are alleging their case to be covered under different Chapters. The petitioner had tried his level best to invoke the provisions of section 25-N of the Act provided under Chapter V-B whereas the case of the respondent is that unit or undertaking was closed under section 25-FFA and the petitioner was accommodated with compensation as provided under section 25-FFF of the Act. The perusal of statutory notice depicts that the respondent management had expressed its intention to close the unit. In Chapter V-A and V-B, the provisions of section 25-F, 25-FFF and 25-N provides the conditions precedent to the retrenchment of a workman. The procedure prescribed under this provision are pertaining to the issuance of notice prior to the retrenchment i.e two month's notice in section 25-FFF and three month's in section 25-N of the Act. To my mind, the closure of an undertaking and establishment would be actually and factually covered under section 25-FFA of the Act provided under Chapter V-A. There were as many as 93 workers working in the company, after the year 2019, hence, regarding the termination of the services of the petitioner in pursuance to the closure of the factory, does not at all attract to the provisions of section 25-N of the Act. At the cost of repetition, the law of the land as envisaged regarding three month's notice wages to be paid under section 25-N in Chapter V-B of the Act, was not at all applicable or attracted to the factory of the respondent management rather it is the application of Chapter V-A of the Act, which was to be applied in the factory of respondent management and, as such, the question of making the payment of three months wages does not arise at all. The respondent company had already paid full & final amount of compensation at the rate of two month's or sixty days notice, as per completed year of service as per the requirement of the law. The respondent company had duly complied with the provisions as laid down under Chapter-V-A of the Act. The entire efforts put in by Ld. Counsel for the petitioner to cover or compare his case by the application of section 25-N in Chapter V-B of the Act, is not sustainable in the eyes of law as the same is devoid of any force.

41. More-so-over, the Government of Himachal Pradesh vide its publication in Government Gazette dated 28.02.2022 whereby the industrial disputes HP amended Act 5 of 2022, assented by president on 25.12.2021, known as industrial dispute amended Act, 2020, whereby the amendment in section 22- 25-F and 25-K, had been repealed by Ordinance No. 20.

42. Furthermore, in view of admission during cross-examination by the petitioner that there were 98 people in 2019, those who have opted for VRS Scheme. Again, it is argued that there was supervisory and managerial staff who have been adjusted at Baddi Plant and many others have been transferred at distinct places i.e Aurangabad, Hyderabad Plant etc. The submission made by the Ld. Counsel for the petitioner is devoid of force. The enhancement of compensation to the tune of `50 lacs (` Fifty lacs) is merely a hypothetical assumption, such plea and contention raised at bar are required to be proved by leading cogent and clinching evidence. It is crystal clear that the condition precedent to retrenchment of workers in closure of establishment/unit has been fairly and squarely covered under section 25-FFA or 25-F of the Act and not under section 25-N of the Act. 43. One more significant feature of the case whereby the Ld. Counsel for the petitioner has strenuously argued before this Court vis-à-vis by reading the contents of the averments made in the claim petition as well as documentary proof supplied on record, importantly appointment letter, probation letter, confirmation letter, refusal to accept letter, demand notice etc. The contention raised thereby that as per the terms and conditions of the appointment letter, the normal age for6938 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 retirement has been provided to be 60 years (Sixty years) and the respondent management in its sole discretion also reserves right thereby to shift/transfer the petitioner in any of the other undertaking or establishment or unit or sister concern as provided in the appointment letter, probation letter and confirmation letter etc., which are not at all meant for a particular unit i.e respondent no.2. It is by and large that the services of the petitioner were engaged through appointment letter issued on the letter head of the company mentioning thereby the local address of the present unit i.e respondent no.2. Admittedly, the petitioner was engaged by the respondent no.1 to work in the present unit (respondent no.2), therefore, the petitioner was the employee of respondent no.1 for all intents and purposes. I am of the considered humble opinion that the petitioner cannot derive any undue benefit or seek advantageous stand out of the same. It is equally proved on record that vide appointment letter the company had provided the complete address of the present undertaking or establishment on the letter head of the company. The argument advanced by the Ld. Counsel for the petitioner that the VRS was not offered to the petitioner, no notice has been served regarding the VRS to the petitioner and no efforts were made by the company to adjust or accommodate the petitioner to other subsidiary or sister concern, any of its establishment and so on. The petitioner was adequately compensated. The respondent no.2 unit is a closed undertaking. Moreso, the petitioner who is under moral obligation to prove his case by leading cogent and clinching evidence, however, the petitioner has miserably failed to do so.

44. Their Lordship of Hon'ble Apex Court in a case titled as The Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Versus The Presiding Officer, Labour Court, Chandigarh and Others AND The Divisional Controller, Mahaasthra State Road Transport Corporation, Amravati Versus Shri Chandrashehar Maribhan Deshmukh and Another and etc. LLR 1990 Supreme Court 410 and Equivalent citations held in paras 76 to 78 reads as hereunder:

76. For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant, in the subject or context. In view of this, it is clear that the extended meaning given to the term 'retrenchment' under clause (oo) of section 2 is also subject to the context and The subject matter. Section 25-F prescribes the condition precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one month's notice indicating the reasons for retrenchment and payment of the wages for the period of the notice. Section 25-FF provides for compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workmen who has been in continuous Service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25-F "as if the workman had been retrenched"(Emphasis Supplied ). Section-FFA provides that sixty day's notice must be given of intention to close down any undertaking and section 25-FFF provides for compensation to workman in case of closing down of undertakings. Very briefly stated section 25- FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25-F, as if the workman had been retrenched". (Emphasis Supplied). Section 25-H provides for re-employment of the retrenched workman. In brief, it provides that where any workman are retrenched, and the employer proposes to take into his employment any retrenched workman person, he shall, give an opportunity to the retrenched workman to offer themselves for re-employment as provided in the

section subject to the conditions as set out in the section. In our view, the principle of harmonious construction implies that in a case where there is a genuine transfer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to the workman "deemed to be retrenched" a right to claim re- employment as provided in section 25-H. In such cases, as specifically provided in the relevant sections the workman concerned would only be entitled to notice and compensation in accordance with section 25-F. It is significant that in a case of transfer of an undertaking or closure of an undertaking in accordance with the aforesaid provisions, the benefit specifically given to the workman is "as if the workman had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25-F.

77. The last submission is that if retrenchment is understood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the contracts of employment in respect of the workman whose service has been terminated. There may be two answered to this question. Firstly, those rights may have been affected by the introduction of Section 2 (oo), 25-F and the other relevant sections. Secondly, it may be said, the rights as such are not affected or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrenchment benefit to the workman, perhaps for immediate tiding over of the financial difficulty. Looked at from this angle, there is implicit a social policy. As the maxim goes – stat pro ratione voluntas populi ; the will of the people stands in place of a reason.

78. Regarding the seeming gaps in the definition one would aptly remember what

Lord Simonds said against the view that the court having discovered the intention

of the Parliament must proceed to fill in the gaps and what the legislature had not

written the court must write.

"It appears to me to be a naked usurpation of the legislative function under

the thin dispute of interpretation. And it is the less justifiable when it is

guesswork with what material the legislature would, if it had discovered the

gap, have filled it in. If a gap is disclosed, the remedy lies in an amending

Act",

45. 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 been paid full and final compensation in lieu of closure of an undertaking or establishment.

46. More-so-over, during the course of arguments, it is argued on behalf of the Ld. Counsel for workman that compensation amount can be refunded at any time, the meagre amount of compensation used by the petitioner is not a valid ground, rather he/she continues to be in service of the management. Therefore, the services of the petitioner may kindly be reinstated. In my humble opinion this argument is fallacious one since the full and final compensation was paid to the claimant in the eventuality of the closure of an undertaking/establishment in compliance to the provisions of section 25-FFA and 25-FFF of the Act. He/she had duly accepted the compensation amount on the same day and it has become final and irrevocable and it cannot be refunded on subsequent date. Here, I am supported by Hon'ble Supreme Court judgment in ITLD Company Versus ITLD workers , AIR 1970 Supreme Court 860 wherein it was held that :—

"The only test to be applied is of the whether the closure is real and genuine or not,

that a closure would not be genuine where the unit or undertaking is found to be open

and functional."

47. I am also supported by Hon'ble High Court of in India Hume Pipe Company versus their workman, 1968 AIR 1002, wherein it has been held as under:—

"The motive of the closure is not at all a relevant factor."

48. I also placed reliance in Authorized Association of Upper India Versus Labour Court and Others 2006 LLR 851 Supreme Court, it was held that :

"The burden of proof establishing relationship to Employer and Employee lies upon

the person who claim for the same. "

49. I am also fortified by the decision of the Hon'ble Supreme Court in District Red Cross Society Versus Babita Arora and Others, Appeal (Civil) No. 3735-3738 of 2007, decided on 14th August, 2007, wherein it is held that :—

"That establishment of an employer should be closed. If a unit or part of an

undertaking which has no functional integrity with other units is closed, it will amount

to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v.

Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87, it has been observed that the

closure need not be of the entire plant. A closure can also be of a part of the plant. In

Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638, it was held as under in Para

21 of the report:

"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing there from. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose."

The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum- Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction- cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from

government and are functioning as separate entities and the mere fact that they have

not been closed down, cannot lead to the inference that the termination of services of

the respondent was by way of retrenchment which was illegal on account of non-

compliance of the provisions of Section 25F of the Act.

10. In view of the findings recorded above, the respondent would be entitled to

compensation only in accordance with Section 25FFF of the Act and the award

for reinstatement in service with back wages passed by the Tribunal which was

affirmed by the High Court cannot be sustained and must be set aside."

50. Again, I am also fortified by the decision of Hon'ble Apex Court of in Globe Ground India Employees Union Versus Lufthansa German Airlines and Another, Civil Appeal Nos. 4076-4077 of 2019 (Arising out of S.L.P.(C) Nos. 25341-42 of 2017), decided on 23rd April 2019 wherein it has been held as under:—

"It is held that for the proceedings arising out of the Industrial Dispute Act, 1947, the

provisions of the Evidence Act, in their strict sense, likewise do not apply to the

proceedings. It is held that the authorities to whom the reference is made under the

Industrial Dispute Act, 1947, being quasi-judicial in nature, have to exercise their

discretion in a judicial manner, without caprice, and according to the general

principles of law and rules of natural justice.

It all depends on the facts of each case; the allegation made and the nature of

adjudication proceedings etc.

Whenever a reference is made, the Industrial Court shall confine its adjudication

to the point of reference and matter incidental thereto".

51. Having said so, in the peculiar facts and Circumstances of the instantaneous case, I am of the considered opinion that the case law as relied upon by the learned counsel for the petitioner would not render any rescue or any sort of assistance in order to substantiate the claim petition filed by the learned counsel for the petitioner to support the petitioner's case.

52. Moreso, It would be pertinent to mention that Learned counsel for the petitioner has strenuously argued that the perusal of Section 10 (4) of the Act provides that the Labour Court Shall confine it's adjudication to the point of dispute referred to it and matters incidental thereto. The use of an expression "Matters incidental thereto" has been more elaborately explained in the judgment passed by the Hon'ble Supreme court in case The Management Hotel Imperial, New Delhi and others versus Hotel Worker's Union , AIR 1959 SC 1342 and Goa MRF Employees Union versus MRF Limited 2010 (15) SCC 432, where it is held that there is no need for specifically referring to the matter which is otherwise incidental. Learned Counsel also relied upon Godrej and Boyce Manufacturing Co. Ltd. versus Rameshwar P. Gawade 2020 (5) SCC 316 whereby it is held that when letter of appointment categorically stated that the services of the workman are transferable? He also relied upon Workman Rashtriya Colliery Mazdoor Sangh versus Bharat Cooking Coal Ltd. 2016 (9) SCC 431, where there are two sets of workman serving in the same unit/establishment cannot be given unequal treatment. He again relied on the decision of the Hon'ble Supreme Court in a case Rajneesh Khajuria versus M/s Wockhardt Ltd. And Another Civil Appeal 8989 of 2019 arising out of SLP Civil 6692 of 2015 decided on 15 January 2020 and also judgment of Central Administrative Tribunal Hyderabad Bench, in case K Venu Gopal Rao versus The Union of India and Others OA No. 020/326/2020 decided on 17th July, 2020 the transfer of the workman as per the terms and conditions of the employment and the grant of an increment on rendering the services for 12 months is a condition precedent. Any change in the6942 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 same cannot be made without putting those adversely affected on the notice, as same the principles of the Natural Justice. Such an attempt, if made, would have enabled the respondents to work out the remedies within the ambit of rules and law and so on. As a matter of fact, all the case law relied upon by learned counsel for the petitioner relating to the issue of the transfers of the workman/ employee or relating to reinstatement/ back wages etc. are clearly distinguishable in view of distinct facts and circumstances of the case.

53. This apart before penning down the judgment, I would like to comment upon the perennial nature of the Industrial Dispute received from the Appropriate Government regarding the demand raised by the petitioner for reinstatement after receiving full & final settlement amount and the dispute arisen between the petitioner and the respondent management. Once their relationship has been severed by raising the demand notice on behalf of the petitioner to raise the demand that the retrenchment/termination/ closure of the factory under section 25-FFA of the Act is not proper and justified. At the cost of repetition, the entiretity of the distinct facts and circumstances of the case would clearly demonstrates that in order to sustain his case has to bolster with double strength by raising the demand notice running into Nineteen pages (19). Henceforth, the petitioner has preferred the claim petition which is also running into Nineteen pages( 19), countered by the reply on behalf of the respondent management running into Thirty one pages (31), followed by rejoinder running into Twenty nine pages (29). Thereafter, the matter was taken up for recording the evidence of the petitioner whereby the petitioner in order to substantiate his allegations has penned down as many as fourty-four pages (44). The penning down of so many pages on behalf of the petitioner by raising demand notice, filing claim petition, rejoinder, examination-in-chief and so on, yield no fruitful results to the petitioner but amounting to paper work only.

54. With all humility, all the authorities relied upon by learned counsel for the petitioner are clearly distinguishable and does not attract to the attendant facts and circumstance of the case in hand , which are absolutely on different footings as found in these authorities. The law shown to me are not at all applicable. All the contention raised at the bar are not convincing and acceptable to this Tribunal. This is for the reasons that the initial burden rests on the shoulder of the petitioner workman Firstly, he is the employee of the respondent, which he has miserably failed to do so. Secondly, there is severance and does not exist the Employer Employee relationship between the parties. Thirdly, once the relationship does not exist than there is no value attached or credence to be given to the documentary evidence relied upon by the workman petitioner such as appointment letter, confirmation letter, probation letter, increment letter, refusal to accept letter etc. Fourthly, the industrial establishment has been subjected to the closure by following the provision of section 25 FFA of the Act. Fifthly, the grievances of the petitioner workman has been duly redressed after making payment of the compensation to him by adhering to the principles laid down in section 25 FFF of the Act. Consequently, all argument advanced before me by learned counsel are devoid of merits and the same assumes no significance in the eyes of law.

55. For the foregoing reasons, As a binding precedent as well the peculiar nature of the Industrial Dispute, facts and circumstances of the case and also in view of above stated reasons, it is held that the workman/petitioner would be entitled to compensation in accordance with section 25-FFF of the Act and the petitioner was adequately compensate by the respondent management by paying fair, just and reasonable compensation and the prayer of the petitioner for reinstatement in alternatively into services with continuity, seniority and full back wages cannot be sustained. So, the services of the petitioner workman ceased to an end for the reason of the closure of undertaking by the applicability of the section 25-FFA and 25-FFF of the Act. It will therefore not be possible to order the reinstatement. It may however be stated that because of the closure of the establishment by the management the petitioner has been duly compensated with handsome compensation. As provided under section 25-FFA, the plea taken by the petitioner by invoking the provisions of section 25-FFF of the Act and that she was forced to accept her full and final compensation is also6943 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 not tenable under law as she has failed to place/prove on record any complaint to the authorities in this regard. Hence, the demand raised by the petitioner for her reinstatement in service w.e.f. 21.12.2020 before the management of respondent after receiving his full & final amount of ` 25,49,122/- or in alternative to enhance the compensation amount upto `50 lacs (`Fifty Lacs), is not proper and said to be justified and as such the petitioner is not entitled to any relief. Accordingly, this issue is answered in negative.

56. No other point or contention was raised/urged.

ISSUE NO. 2

57. In support of this issue no evidence has been aduced by the respondent, which could legitimately goes 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

58. As a Sequent effect, in view of my previous discussion, evaluation and findings on the

aforesaid issues 1 & 2, the petitioner workman has miserably failed to establish on record that

she had any relationship of employer and employee with the respondent management. The

merit's of the claim petition of the petitioner deserves dismissal and the same is hereby

ordered to be dismissed. Consequently, the terms of the present reference stands hereby

answered in negative, as it is conclusively held that the relationship of the petitioner

workman and respondent management as employer and employee has been severed and does

not exists anymore. So, the petitioner is not entitled for any sort of relief from this Tribunal.

59. Let a copy of this award be communicated to the Appropriate Government for its publication in the official gazette within 30 days of the receipt of the copies of the award in accordance with law. File be consigned to the record room after necessary completion by the concerned Ahlmad.

Ordered accordingly.

Announced in the open Court today on this 3rd day of May, 2023.

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

__________

IN THE COURT OF SHRI RAJESH TOMAR, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Reference Number : 119 of 2022

Instituted on : 23-02-2022

Decided on : 03-05-20236944 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 Mohinder Singh s/o Shri Chuni Lal, r/o Village Dolwa, P.O. Dol, Tehsil Jawali, District . .Petitioner. Kangra, H.P.

VERSUS

1. M/s Johnson & Johnson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, through its Authorized Signatory.

2. The Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, H.P.

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

For the Petitioner : Shri Rajiv Rai, Advocate

For the Respondents : Shri Rajeev Sharma, Advocate

AWARD

The following reference petition has been, received from the Appropriate Government vide notification dated 17.12.2021, under section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to be as the Act), for its legal adjudication, which reads as under:—

"Whether the demand of Shri Mohinder Singh s/o Shri Chuni Lal, r/o Village Dolwa,

P.O. Dol, Tehsil Jawali, District Kangra, H.P., for his reinstatement in service w.e.f.

21.12.2020 before the Occupier/Factory Manager M/s Johnson & Johnson Ltd., 58-B

EPIP Phase-1, Jharmajri, Baddi, District Solan, HP after receiving his full and final

amounting to `25,41,387/- is proper and justified? If yes, what relief the above

aggrieved workman is entitled to from the above management/employer? 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 general workman trainee by the Occupier/Factory Manager, M/s Johnson & Johnson Ltd., 58-B EPIP Phase-1, Jharmajri, Baddi, District Solan, HP (hereinafter to be referred as the respondent no.2), which is one of the unit of M/s Johnson & Johson Pvt. Ltd., 501, Arena Space Behind Majas Bus Depot., Office Jogheshwari, Vikhroli Link Road, Jogeshwari (East) Mumbai-400060, (hereinafter to be referred as the respondent no.1), vide appointment letter for a period of six months, on basic salary of `3,000/- per month + allowances. Thereafter, the probation period of the petitioner was regularized. The appointment letter, probation letter and confirmation letter are placed on record. The respondent company has affixed a notice on the notice board on 21.10.2020, under section 25-FFA, of the Act, wherein the decision of closure of establishment was narrated by assigning the reason, which can never be said to be a valid reason on account of unavoidable circumstances, beyond the control of the employer. Thereafter, the respondent company had started pressurizing the petitioner and other similar workers to tender their resignation, so as the company may escape from its statutory liability of retaining the petitioner as the employment of the petitioner was not unit based or meant only for its unit at Baddi unit, despite stipulation in the appointment letter that the company reserve the right to transfer or engage or adjust the petitioner at any plant, factory, associate company or sister concern of the company, which may be in existence or may came into existence, at any point of time during the employment. The respondent company is having its unit at various places, such as Baddi, Aurangabad, Hyderabad, Telangana and other places etc. in the Country. The petitioner falls within the definition of "Workman" as provided under section 2(s) of the Act. The petitioner6945 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 had rendered continuous service for more than 240 working days in each and every calendar year with the best of his ability, honesty, sincerity and integrity. The petitioner had crossed the age of 41 years and as such the chances of his re-employment are very blink and the petitioner has requested the respondent to adjust him on the analogy of other confirmed employees namely Ranjeesh Paul, Rajat Dogra and Saurav Mukharjee, those who have been accommodated at Katha Plant Baddi and similarly Ajay Sharma, Mohit Aggarwal, Sachin Jariyal, Gajinder Dhiman, Shashikant and many others similarly situated employees have been transferred/shifted/adjusted at Aurangabad, Telangana plant of the respondent company. The respondent company never paid any heed to the request of the petitioner.

3. Surprisingly, the respondent company had issued a letter dated 22.10.2020 along-with its enclosure letter dated 21.12.2020 to the petitioner and similar situated persons, wherein it was conveyed that since no settlement has been arrived between the parties, as such the services of the petitioner is terminated on 21.12.2020 at 5:00 P.M. In the aforesaid notice, the petitioner was also conveyed the details of payment made to the petitioner including ex-gratia, gratuity etc. The petitioner was not paid the annual increment for the year 2020-21 and the non-payment of annual increment is illegal, without following the procedure and against the provisions of the Law. It is submitted that the VRS scheme was launched in June 2009 for 82 junior employees. The petitioner was not paid the benefits of complete statutory compensation which was to be calculated at the rate of average pay which includes the allowances in terms of section 25-N, 2(aaa) and 2 (rrr) of the Act.

4. The perusal of acceptance letter dated 29.7.2019, issued to the junior Mr. Thakur Dass, who opted for VRS after rendering three years of service depicts that he has been paid ` 11,73,742/- (including early bird benefits, skill upgrade support and medical expenses) as full & final settlement amount on the basis of compensation at the rate of four month's for every completed year, whereas from the Annexure P/4, it can be seen that the petitioner has been paid ` 1,21,154/- as gratuity amount for service upto 22.12.2020 and `17,94,149/- as total retiral benefits after rendering service of more than 14 years in the respondent company. Shri Thakur Dass has been paid statutory compensation at the rate of four months for every completed years, whereas, neither such option of VRS nor such benefits were extended to the petitioner.

5. The termination of the services of the petitioner by discontinuing his services is nothing but termed as "retrenchment" under section 2-oo of the Act as the same has been done, without statutory notice as per requirement of section 25-N of the Act. The petitioner was neither given any independent or individual notice nor paid retrenchment compensation as per the requirement of section 25-N of the Act, hence, the said retrenchment is completely illegal and without the prior permission of the Government. Not only this, the respondent had also violated the provisions of sections 25-G and 25-H of the Act by not following the principles of "last come first go". Further, the respondent has also contravened the provisions of section 25-N, 25-O, 25-Q and 25-R of the Act as the respondent company who violated the procedure laid down deserves penalty under the Act which provides for imprisonment to the wrong doer. It is denied that notice of closure under section 25-FFA was issued to the appropriate government. The demand notice raised by the petitioner was duly replied by the respondent by rendering lame excuses. It is submitted that the termination of the services of the petitioner have been made arbitrarily and illegally by the respondent and further by paying inadequate amount under the alleged full & final settlement compensation amount.

6. In the footnote of the petition, the following prayer clause has been appended, which is reproduced for the sake of convenience, read as under:

A. That the termination/retrenchment of the petitioner vide communication dated

21/22.10.2020 may kindly be declared illegal and void ab-innitio.

due on 1st September, 2020 to the petitioner may kindly be declared illegal.

C. That the respondents may kindly be directed to reinstate the petitioner along-with

all the consequential benefits including seniority and back-wages to any of its

plant, factory, associates, company or sister concern, since the date of his

discontinuation from the service. OR

D. In alternative the respondents may kindly be directed to enhance the full and

final settlement amount/retrenchment compensation to the tune of `50,00,000/- on

the analogy to which Shri Thakur Dass a junior fellow has been paid on

completion of merely three years of service.

E. That the record of the case may kindly also be summoned.

F. Any other or further order as this Hon'ble Court deems fit and proper may

kindly also be passed in the interest of justice."

7. The lis was resisted and contested by respondent by filing written reply on inter-alia preliminary objections of maintainability, not come to the Court with clean hands, not a legal reference received from the Appropriate Government and the petitioner travelled beyond the terms of the reference in the claim petition.

8. On merits, it is an admitted position on record that the petitioner was engaged by the respondent and his services were governed by the Act, Rules and Standing Orders as well as terms and conditions laid down in the appointment letter for the service condition for the purpose of any dispute between the parties. The law laid down under section 25-FFA of the Act is very clear that the respondent company shall issue sixty day's advance notice expressing their intention to close down the industrial unit and Rule 81-A of Industrial Employment Rules, 1974 further provides that the employer shall sent the notice on prescribed Performa "W" to the Appropriate Government, Labour Commissioner, Conciliation Officer, Employment Exchange etc. In compliance to the provisions of section 25-FFA the respondent sent notice and also pasted a copy on the notice board. Thereafter, a meeting was convened by the respondent company with all the petitioners those who were working in the factory including the petitioner and they were apprised regarding the closing down of the factory as well as regarding the retrenchment compensation and other benefits, which the factory management was giving to them with motive to have golden handshake at the time of full & final financial dues as the respondent had legally closed down its Baddi unit by following the procedure in letter and spirit.

9. Again, it is emphatically denied that the respondent pressurized the petitioner to tender their resignation by making a lame excuse that the undertaking has been closed. There was no request from the side of the petitioner to transfer him at any other places like Aurangabad or elsewhere. The respondent company had also issued the statutory notice under section 25-FFA on 21.10.2020, that the factory at Baddi will be closed permanently w.e.f. 21.12.2020 for the reasons stated therein. It is a denying fact that the respondent company had illegally terminated the services of the petitioner. It is absurd to contend that the services of a workman employed in a factory should be continued even after the said factory is closed and his services were discontinued with by following all mandates set out in the law. It is also denying fact that the reasons mentioned in the statement of reasons were not factually correct.

10. Furthermore, it is submitted that the industrial unit at Katha, Tehsil Baddi is manufacturing consumer products and there is no manufacturing unit of respondent in Hyderabad6947 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 and Telangana. It is submitted that the respondent is having its unit at Aurangabad and number of persons have been engaged in the said factory after 21.10.2020. The petitioner was paid wages even when there was having production issue on account of quantified change in the production. It does not lie in the mouth of the petitioner to make the request for adjustment or transfer at this stage even after receiving full & final settlement amount. The services of the petitioner were terminated as per the law laid down by following the provisions of section 25-FFA, 25-FFF of the Act. There is no violation of any of the provisions of the Act. The VRS scheme was launched for each and every employee and not for a particular set of workmen.

11. The acceptance of VRS by Mr. Thakur Dass, payment so received by him and the full & final settlement amount paid to the petitioner upon the closure are to unrelated and distinct events as the petitioner was paid a handsome amount inclusive of Ex-gratia, Legal dues towards full and final settlement amount. On humanitarian considerations, the attempt of the petitioner by referring the case of Mr. Thakur Dass case cannot be linked to the closure of the Baddi unit. The grant of annual increment is not a absolute right and the same has to be earned by performance. The rest of the allegations were also denied by submitting that the averments made in the claim petition is nothing but a replete with false and fictitious. It is, therefore prayed, that this Hon'ble Court may kindly be pleased to dismiss the claim petition of the petitioner with punitive costs and answer the reference against the petitioner and in favour of the respondent management in the interest of justice.

12. While filing rejoinder, the petitioner controverted the averments made thereto in the reply filed by respondent and by reaffirming and reiterating the contents those raised in the claim petition.

13. On elucidating the pleading of parties, the following issues were struck down by this Tribunal, for its final determination, as is evident from zimni order dated 31.10.2022, which reads as under:—

1. Whether the demand of the petitioner for his reinstatement in service w.e.f. 21.12.2020 before the respondent after receiving his full & final amounting to `25,41,387/- is proper and justified? If yes, what relief the petitioner is entitled to from the respondent, . .OPP. and if not, its effect?

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

as alleged?

3. Relief

14. 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.

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

16. For the reasons to be recorded hereinafter, while discussing issues for its final determination, my findings on the point-wise issues, are as hereunder:

Issue no. 1 No. Not entitled to any relief.

Issue No. 2 No.

Relief Reference petition is answered in negative and the claim petition is ordered to be dismissed, as per operative part of award.

ISSUE NO.1

17. 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. He has also tendered into evidence documentary proof i.e appointment letter (PW-1/B), letter of Probation (PW-1/C), confirmation letter (PW-1/D), termination letter (PW-1/E), refusal to accept letter (PW-1/F), increment letter (PW-1/G), demand notice (PW-1/H) and acceptance letter (PW-1/J)

18. In the cross-examination, there is clear cut admission on the part of the petitioner that he was initially engaged as a trainee in the factory. He further admitted that after the training was over, he was engaged on probation and thereafter his services were confirmed by the respondent management. He again admitted that the factory was indulged in manufacturing Cat Gat thread for medical purpose. He denied that he was discharging the function of packing the material. He admitted that the factory was working properly till 2018. He denied that the company had introduced Voluntary Retirement Scheme (in short VRS) in the year, 2019 after the stoppage of thread supply. He admitted that 98 people in the factory who had opted for VRS. He denied that the factory was not working properly after the stoppage of supply of thread. He denied that the company had offered VRS to them. He admitted that meeting of all workers was conveyed in the factory on 21.10.2020. He admitted that there was no production in the factory after 21.10.2020. He had also feigned ignorance that he was paid retrenchment compensation, gratuity, ex-gratia, leave encashment etc. He admitted that he had refused to accept the details of the amount along-with termination and experience letter. He further admitted that the details of the full & final amount etc. were sent to him on his address by post. He denied that the amount of full & final settlement amount including ex-gratia was paid to him by the company. He admitted that he utilized the money for his personal work, paid by the company. He denied that the conciliation proceedings were initiated before the Labour Officer. He denied that he was engaged for this factory, which was closed, by following the rules and regulations.

19. To refute the allegations of the petitioner, the respondent had examined Shri Jaspal Sharma, Law Officer of Labour Department as (RW-1), who has produced the letter dated 30.10.2020 Mark RX-1, letter dated 26.11.2020 Mark RX-2, letter dated 19.11.2020 Mark RX-3, letter dated 02.02.2021 Mark RX-4 and Form W Mark RX-5. He deposed that the original record is not traceable, as the dealing assistant had passed away.

20. Shri Vikas Dadwal, (RW-2) working as Employee Relationship Leader of the respondent company had appeared into the witness box, who had tendered into evidence his sworn in affidavit (RW-2/A), wherein he also reiterated almost all the averments as made thereto in the reply. He also tendered into evidence the statement of account by JP Morgan Bank (RW-2/B), statement of account by HSBC Bank (RW-2/C), details Mark RX-6, VRS Scheme Mark RX-7 and authority letter Mark RX-8.

21. In cross-examination, the respondent witness had categorically admitted that the petitioner was engaged vide appointment letter, wherein it was specifically provided that the company will impart the training to the petitioner with any sister concern. He further admitted that as per appointment/probation letter, the normal age for retirement found mentioned in the appointment letter was 60 years. He admitted that the petitioner was engaged for unit at Baddi and the company in its discretion reserved the right to transfer to any of affiliates, subsidiary or sister Company. He admitted that as per confirmation letter, the term and condition of the appointment shall remain the same. He also admitted that no option for transfer was given to the workers.

Volunteered that the option was not given to the petitioner as the plant was going for closure under 25 FFA of the Industrial Dispute Act. He denied that no opportunity was given the petitioner prior to the closure. Volunteered that the respondent management had launched the VRS scheme in 2019. He admitted that no increment was given to the workers in 2020-21. Volunteered that there was no production in the unit with effect from October 2020 to December 2020. Volunteered that the VRS scheme has no connection with the closure of the company. He again admitted that Thakur Dass had completed 3 years of services who had opted for VRS. He further admitted that Shri Thakur Dass was paid total amount of Rs. 11,73,742/-. He denied that the VRS scheme was available only to the workers those who had rendered services less than ten years. Volunteered that it was available to all the workers who had opted for the same. He denied that the notice for launching VRS scheme was not served upon the entire workers. There were 83 workers who had opted for the VRS scheme. He denied that that no permission was sought from the government for retrenchment of the workers under VRS scheme. He denied that the VRS scheme was a forged and tempered document. He admitted that the employees namely S/Sh. Rajat Dogra, Sourav Mukherjee, Ajay Sharma, Mohit Agarwal etc. were their regular employees. He denied that the overall control lies with the Mumbai Office. He admitted that M/s Johnson & Johnson is a multinational company. He admitted that 83 workers had applied for opting the VRS. He denied that no notice was issued before terminating the service of the petitioner and similar situated workers. Volunteered that the notice was issued under section 25-FFA of the Act. He denied that many new persons were recruited at Aurangabad Plant after 2019. He denied that the petitioners were not paid the extra benefits such as early bird benefit, medical expenses benefit, skill up-gradation benefits etc. as provided under the VRS scheme. He had denied that the petitioner was engaged by the company under transferrable job. He had also admitted that for the purpose of calculation of full and final settlement amount, the petitioner was paid two month's salary for every completed year of service as compared to four month's salary for every completed year of service under VRS Scheme.

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

23. Shri Rajiv Rai, Learned Counsel for the petitioner has contended with all vehemence that the petitioner was engaged as a general workman through the appointment letter. Lateron, the services of the petitioner were confirmed. Ld. Counsel had carried me through the each and every contents of appointment letter and confirmation letter, stating thereby that the terms and conditions of the services of the petitioner are factually governed by these letters. The engagement of the petitioner and further continuing in job is subject to the suitability of the job or availability of the vacancy. He argued that after the completion of the probation period, the services of the petitioner were regularized. After going through the contents of claim petition and entire documents placed on record, it is argued that the plant or unit is sitll in existance though the respondents has used the services of the petitioner for 13-14 years and now there are absolutely no chance of his re- employment. Ld. Counsel for the petitioner strengthened his arguments on the basis of documentary proof such as apointment letter, confirmation letter, termination letter etc. All these letters were time and again referred by the Ld. Counsel for the petitioner and argued that the services of the petitioner could have been transferred or adjusted or accomodated at any other unit of the respondent. Ld. Counsel for the petitioner laid much emphasis to the averments made thereto in para 13 to para 21 of the claim petition and argued that the despite various/numerous units owned by the respondent, the company had pressurized the petitioner to tender their resignation.

24. Ld. Counsel for the petitioner again argued that the petitioner and other similar situated workers are having very few/blink chances of their being re-employment. The issuance of notice under section 25-FFA dated 21.10.2020 and termination of the services of the petitioner vide termination letter w.e.f. 21.12.2020 are in clear cut violation of the principles of natural justice and salient provisions of the Industrial Disputes Act. No notice has been served or proved. The6950 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 petitioner was subjected to discrimination in violation of terms and conditions of the appointment letter, as compared to regular and confirmed employees working in other capacities such as managerial, supervisory and administrative, those who were adjusted at Baddi and Aurangabad unit. The non-payment of increment has not been considered while paying the compensation, hence, there is a complete violation of the provisions of section 25-N of the Act. The VRS Scheme launched was not provided any option to the petitioner.

25. Ld. Counsel for the petitioner has also argued that the grant of benefits as given to Shri Thakur Dass, employee of the respondent, were not given to the petitioner as the petitoner was much senior employee of the respondent as compared to Shri Thakur Dass. The petitioner was not paid the complete financial dues as per the requirement of law while calculating the full and final compensation. It, is therefore, prayed that the claim filed by the petitioner may very kindly be allowed.

26. Ld. Counsel for the petitioner also placed reliance on the case law as laid down in case titled as Rajneesh Khajuria Vs. M/s Wockhardt Ltd. & Anr. decided on 15.01.2020, Workmen Rashtriya Colliery Mazdoor Sangh Vs. Bharat Cooking Coal Ltd. (2016) 9 SCC 431, Hotel Imperial Vs. Hotel Workers Union AIR 1959 SC 1342, Godrej and Boyce Manufacturing Company Vs. Rameshwar P. Gawade (2020) 5 SCC 316), Goa MRF Union Vs. MRF Ltd. (2010) 15 SCC 432.

27. Per contra, Shri Rajiv Sharma, Ld. Counsel for the respondent vigorously urged that the reference received from the appropriate govenrment is wholly misconcieved, very precise in nature and conclusive to adjudicate that after receiving the full & final settlement amount, the demand for reinstatement is neither proper nor jusitifed. Admittedly, the petitioner was engaged by the respondent management for its Baddi Unit only and the issuance of appointment letter, probation letter, confirmation letter etc. are not a denying fact. Ld. defence Counsel argued that the company was indulged in a process of manufecturing Cat Gat thread to be used for biopsy/heart surgery, which has now become redundant in the present scenario. The respondent management had issued the requisite 60 day's statutory notice as per the requirement of section 25-FFA of the Act by displaying its intention to close down the unit and after making the full and final payment to the petitioner under secton 25-FFF of the Act. There is a clear cut distinction between the Chapter-V-A and V-B of the Act. The present case is covered under Chapter V-A and not under Chapter V-B of the Act, therefore, the provisons of section 25-N have no application in the present facts and circumstances of the case. He prayed for the dismissal of the claim petition.

28. Written arguments/submissions were also submitted by the respective Learned Counsel for the parties and the same has been placed on record.

29. I have given my best anxious considerable thought to the respective oral and written arguments/submissions of the Learned Counsel for the parties and have also scrutinized the entire case record including written submissions placed on record by both the parties with minute care, caution and circumspection.

30. Thus, from a careful and meticulous examination of the entire case record, coupled with oral and documentary proof supplied on record, the case of the petitioner is manifestly to the effect that the petitioner was engaged as a workman by the respondent management on the rolls of the company after having been engaged vide appointment letter and the petitioner had joined the respondent management. Admittedly, the petitioner has successfully completed 240 working days, in a calendar year with the respondent. It is alleged that the respondent management had started pressurizing the petitioner to tender his resignation by making a lame excuse that the establishment has been closed upon which the petitioner had requested the respondent management to6951 राजपत्र, हिमाचल प्रदेश, 12 सितम्बर, 2023/21 भाद्रपद, 1945 adjust/transfer the services of the petitioner in other unit on the same anology of other regular employees, those who have been accomodated at various plants i.e Baddi, Aurangabad, Telangana etc. The non-payment of increment as well as the termination of the services of the petitioner will be amounting to illegal, unjust and contrary to the provisions of the Act. Therefore, the petitioner had prayed for his re-instatement into the service or in alternative for the payment of compensation, to be enhanced upto `50 lacs (` Fifty Lacs) as a lump sum compensation.

31. To the contrary, it is vehemently submitted by the respondent management that the terms and conditions of the petitioner are governed by the appointment letter and also by salient provisions of the industrial law as laid down under the Act, Industrial Employment Standing Orders Act, H.P. Industrial Disputes Rules 1974, as amended from time to time etc. The respondent management is not in a position to run the industrial unit and had issued the requisite statutory 60 day's notice for closing down its business/establishment or unit or undertaking, as per the requirement of section 25-FFA of the Act and the petitioner had issued the requisite notice as provided in prescribed Form-F under Rule 81-A of Industrial Disputes Rules 1974, sent to concerned/appropriate authorities and also affixed a copy of the statutory notice under section 25- FFA of the Act, by displaying the same on the notice board. The respondent management was keen to have a golden hand shake by making the full & final payment under section 25-FFA of the Act, which was paid to the petitioner including Ex-gratia, Leave encashment, Gratuity, Bonus etc. Accordingly, the full and final payment has been paid to the petitioner in lieu of all financial dues as amenable to the petitioner, as per own entitlement of the petitioner.

32. Though, it has been specifically alleged by the respondent management in their reply that the company had expressed its swear intention to close down its establishment/undertaking w.e.f. 21.12.2020 by complying with all the codal formalities under the relevant provisions of law and only after giving the requisite statutory notice of 60 day's to all concerned parties i.e Appropriate Government, Labour Commissioner, Labour Officer, Employment Exchange etc. and also pasted a copy thereof by displaying the same on the notice board, thereafter, when the respondent management has expressed its intention by alleging the closure of the establishment/unit, then it is for the respondent management to prove the same on record. Needless to mention that one who alleges must prove on record. On this point, I am fully fortified by the decision of the Hon'ble Supreme Court reported in a case titled as J. K. Synthetics Vs. Rajasthan Trade Union Kendra, 2001 (2) SCC 87, whereby it is held that the industrial tribunal was required to go into the question whether or not the retrenchment of the workman was justified or not. It is true that even if an industrial dispute is tried by the Industrial Tribunal, at the very inception, the Industrial Tribunal will have to first of all examine the industrial dispute referred to it, as an industrial dispute or not and the answer of this question would inevitably depends on the view whether the action taken by the respondent management regarding the closure of the industrial establishment or lock-out its unit? Their Lordships of Hon'ble Supreme Court in para 22 of the judgment had observed their wisdom words that in order to justify the retrenchment of 1164 workers on the basis that there was a closure of a section of nylon plant or unit and, so in order to come to the conclusion whether the action of retrenchment was justified or not? The Industrial Tribunal would necessarily had to decide firstly whether or not there was a closure of an industrial unit or establishment or not?

33. Before, proceeding further, I would like to invite the attention of the parties to the various provisions of the Act, which are reproduced as under:

"2(k) industrial dispute" means any dispute or difference between employers

and employers or between employers and workmen, or between workmen and

workmen, which is connected with the employment or non-employment or the

terms of employment or with the conditions of labour, of any person;

undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or

undertaking and only one or some of such activities is or are an industry or

industries, then,--

(a) if any unit of such establishment or undertaking carrying on any

activity, being an industry, is severable from the other unit or units of

such establishment or undertaking, such unit shall be deemed to be a

separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried

on in such establishment or undertaking or any unit thereof is an

industry and the other activity or each of the other activities carried on in

such establishment or undertaking or unit thereof is not severable from and

is, for the purpose of carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire establishment or

undertaking or, as the case may be, unit thereof shall be deemed to be an

industrial establishment or undertaking;

"25FFA. Sixty days' notice to be given of intention to close down any undertaking.-

(1) An employer who intends to close down an undertaking shall serve, atleast

sixty days before the date on which the intended closure is to become

effective, a notice, in the prescribed manner, on the appropriate

Government stating clearly the reasons for the intended closure of the

undertaking: