Page No.# 1/12 vs The Management Of M/S Fertichem Ltd. And ...
2025 Latest Caselaw 7128 Gua

Gauhati High Court

Page No.# 1/12 vs The Management Of M/S Fertichem Ltd. And ... on 9 September, 2025

                                                                         Page No.# 1/12

GAHC010224742014




                                                                   2025:GAU-AS:12238

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/496/2014

            BASANTA KUMAR KALITA
            S/O- LT. RAMESWAR KALITA, R/O- C/O- RABIN CHOUDHURY, KRISHNA
            NAGAR, GANESH MANDIR PATH, BY LANE NO. 4, DIST.- KAMRUP M,
            ASSAM, PIN- 781020, WORKMAN and PRESIDENT OF SHRAMIK KALYAN
            MANCH, FERTICHEM LTD., BONDA, GHY- 26.

            VERSUS

            THE MANAGEMENT OF M/S FERTICHEM LTD. and 2 ORS
            AIDC COMPLEX, R.G. BARUA ROAD, GHY- 24.

            2:REGIONAL PROVIDENT FUND COMMISSIONER EPFO
             NER
             REGIONAL OFFICE
             G.S. ROAD
             BHANGAGARH
             GHY- 5.

            3:CHAIRMAN
            TASK FORCE FOR PSU REFORM
             GOVT. OF ASSAM
             PUBLIC ENTERPRISE DEPTT.
             DISPUR
             GHY- 6

Advocate for the Petitioner   : MR.A DASGUPTA, MS.B DAS

Advocate for the Respondents : GA, ASSAM, MR D DEKA (R-1),MR D J BORO (R-1),MR. J

BARMAN,MR. J K GOSWAMI (r-1),MR.L P SHARMA,MR.S CHAKRABARTY,MR.P K ROY,MR.S K CHAKRABORTY,MR.A CHAKRABORTY,MS.M DUTTA,MR.R THAKURIA Page No.# 2/12

BEFORE HON'BLE MR. JUSTICE KARDAK ETE

Date of Hearing & judgment : 09.09.2025

JUDGMENT & ORDER Heard Mr. A. Dasgupta, learned Senior Counsel assisted by Ms. B. Das, learned counsel for petitioner. Also heard Mr. D. Deka, learned counsel for the respondent No. 1; Mr. P. K. Roy, learned Senior Advocate assisted by Mr. B. Das, learned counsel for the respondent No. 2 and Mr. S. S. Roy, learned Government Advocate for the State respondents.

2. Challenge made in this writ petition is to the judgment dated 11.09.2013, passed by the Presiding Officer, Labour Court, Guwahati, Assam in Misc. Case No. 04/2007, whereby, the claim for wages and salaries of the workmen in terms of the award dated 11.11.2002 passed in Reference Case No. 02 of 2000, has been rejected.

3. Petitioner served as Senior Office Assistant in M/s Fertichem Ltd., a company owned by the Government of Assam, respondent No. 1 herein. M/s Fertichem Ltd. manufactured fertilizers and started its production in the year 1974, however, it could not carry out its production after 1995. In the year 1999, a Memorandum of Understanding (MOU) was signed between the M/s Fertichem Ltd. and Assam Industrial Development Corporation (AIDC) in one part and M/s BES Foundries Pvt. Ltd. in other part, inter alia with an agreement that M/s BES Foundries Pvt. Ltd. will carry out the production and manage all other affairs of the business and that the existing workers who would like to work under new arrangement Page No.# 3/12

would give their consent and remaining unwilling persons would go for VRS Scheme.

4. In terms of the Memorandum, some employees opted for VRS Scheme and remaining 65 employees expressed their willingness to serve in the industry. The MOU failed to evoke any response to have the production and as a result, the 65 employees, who expressed their willingness to work under M/s Fertichem Ltd. had not received their due wages from 01.01.1996. In the meantime, a notice was issued by the respondent No. 1 to the effect that all the workmen employed in the industry would not get their wages and other entitlement w.e.f. 01.11.1999, which virtually amounts to closure of the establishment without due compliance of the provisions of the Industrial Dispute Act, 1947 (hereinafter referred to as the Act of 1947). The said action of the respondent No. 1 caused an industrial dispute and the same was raised by the Trade Union, namely, Shramik Kalyan Manch, claiming it to be an illegal closure.

5. As the dispute could not be settled, the Government of Assam in exercise of power conferred under Section 10 of the Act of 1947, referred the dispute before the Industrial Tribunal at Guwahati vide Notification dated 15.02.2000 being Reference Case No. 02/2000. The learned Industrial Tribunal, Guwahati, passed its Award dated 11.11.2002 by holding that the Management is not justified for non-payment of their contesting employees as per the Act of 1947. Therefore, the Management is liable to pay the amount payable to the legitimate employees who has not opted for VRS Scheme. It also held that the Management is to clear wages/salaries from 01.11.1999 onwards to the legitimate workers who Page No.# 4/12

are entitled to it.

6. The Trade Union demanded for implementation of the said Award, however, it was not implemented. On 31.08.2003, the respondent No. 1 issued letters to the workers, wherein, it was stated that the Management has decided to close down the establishment w.e.f. 31.08.2003 and on such closure, the services of the employees are terminated on 31.08.2003. Against the said decision, the Trade Union raised an industrial dispute, which was against the 33 workmen. Although a conciliation proceeding was initiated, same could not be settled. Accordingly, the Government of Assam referred the dispute before the Industrial Tribunal at Guwahati, which was registered as Reference Case No. 14/2004.

7. Vide an Award dated 31.08.2006, the Industrial Tribunal held that the closure of the Company was not bona fide and the termination of the services of 33 employees was illegal and they are entitled to compensation as per provisions of Section 25F(b) of the Act of 1947, which shall be computed and equivalent to 15 (fifteen) days average pay for every complete year of service or any part thereof in excess of 6 (six) months. The workmen shall also be entitled to wages for 1 (one) month as per the provisions of Section 25F(a) of the Act of 1947.

8. The respondent No. 1 has challenged the said Award dated 31.08.2006, passed in Reference Case No. 14/2004, which was registered as WP(C) No. 251/2007. This Court vide order dated 25.04.2013, disposed of the writ petition on the basis of additional-affidavit filed by the respondent No. 1, wherein, it was stated that the concerned workmen have been paid with their closure compensation along with the amount of Page No.# 5/12

wages payable to them till 31.08.2003 and the said payment was made on 08.09.2010, which has been accepted by the employees, including the present petitioner.

9. The petitioner approached the Labour Court at Guwahati, by filing Misc. Case No. 04/2007, under Section 3(C)(2) of the Act of 1947, claiming for payment of dues as per Reference Case No. 02/2000 and Reference Case No. 14/2004. The Labour Court vide impugned judgment dated 11.09.2013 dismissed the Miscellaneous Case basing on the order of this Court passed in WP(C) No. 251/2007, wherein, it has observed that during pendency of the writ petition, all the 33 employees of the petitioner have accepted the closure compensation as full and final settlement of dues. The employees have been paid all their dues, salaries including arrear salaries in revised pay scale, which has been accepted by the employees without any demur. The employees have declared that they have voluntarily severed their ties with the petitioner and have been released on the closure of the industry. The said employees have further declared that they had no claim against the Management on any account whatsoever and they have given an indemnity in favour of the Management to indemnify the Management against all claims. The management has paid a total amount of Rs. 1,84,03,896.00/- (Rupees One Crore Eighty Four Lakhs Three Thousand Eight Hundred and Ninety Six) to the employees. Hence, this writ petition.

10. Mr. Dasgupta, learned Senior Counsel for the petitioner submits that the cumulative effect of 2 (two) Awards being Reference Case No. 02/2000 and Reference Case No. 14/2004 passed by the Industrial Tribunal, reflects that virtual closure as indicated in the letter dated Page No.# 6/12

31.03.2003 is illegal and in consequence whereof the concerned workmen are entitled to the wages. The closure may be validated on compliance with the requirement as prescribed under the Act of 1947. Accordingly, the Management is liable to pay wages till the effective date of closure i.e. 31.08.2003, the contention which is against the Award passed by the Industrial Tribunal in Reference Case No. 02/2000. Facing with such situation, the application under Section 33(C)(2) of the Act of 1947 was preferred before the Labour Court. The petitioners claimed their entitlement of arrear wages as accrued up to 2007. He submits that the Labour Court was of erroneous impression that the entire proceeding is dependent on the writ proceedings before the High Court.

11. He submits that the Labour Court failed to appreciate that the Award passed in Reference Case No. 02/2000 and Reference Case No. 14/2004 are on two different factual matrix. The first Award relates to payment of wages payable to the workmen as the establishment was in existence and it was not closed down. In view of this Award, the petitioners are entitled to their wages and other benefits. The second Award relates to close down of the establishment where the employer has to comply with certain provisions of the Act of 1947. Without due compliance of those provisions, no employer can validly close down its establishment. The second Award does not stand in the way of concerned workmen in the writ proceedings as the claim of their entitlement arises out of non-payment of wages during the subsistence of establishment, till the month of August, 2007.

12. Mr. Dasgupta, learned counsel submits that the Labour Court might have a wrong impression that second Award superseded the first Award and might have the view that first Award merged with the second Award.

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He reiterates that the first Award declares the entitlement of the workmen, with regard to wages and the second Award concerns with the liability of the Management. Both these Awards are mandatory nature giving positive direction to the Management for payment to the workmen and due compliance to the mandatory provision of the industrial dispute to close down its establishment. Even if the second Award does not survive, the first Award which relates to payment of wages cannot be said to have merged with the second Award as the 2 (two) Awards relate to different entitlements. Therefore, the disposal of the writ petition, which pertains to challenge of the second Award cannot be a basis for dismissal of the Misc. Case No. 04/2007. And as such, the impugned judgment dated 11.09.2013 may be set aside and quashed and the matter may be remanded back to the learned Labour Court to complete the proceedings to adjudicate the entitlement of the workmen.

13. Mr. D. Deka, learned counsel for the respondent No. 1, by relying on the judgment and order dated 25.04.2013 passed in WP(C) No. 251/2007 and the records of Receipt-cum-Undertaking by the workmen, submits that during the pendency of the writ petition all the remaining 33 employees of the Management have accepted the closure compensation as full and final settlement of their dues. The employees have been paid all their salaries including the arrear salaries in the revised pay scale which has been accepted by the employees without any demur. The employees have declared that they have voluntarily severed their ties with the Management and have been released on closure of the establishment. The said employees have further declared that they have no claim against the Management on any account whatsoever and they have given an Page No.# 8/12

indemnity in favour of the Management to indemnify the Management against all claims. The Management has paid a total amount of Rs. 1,84,03,896.00/- (Rupees One Crore Eighty Four Lakhs Three Thousand Eight Hundred and Ninety Six) to the employees. Therefore, the employees including the petitioner have accepted the closure of the Management and as such, all the Awards merged with such settlement. He submits that in view of the full and final settlement of the dues which have been accepted by the employees including the petitioner, nothing remains to be adjudicated upon and as such, the learned Labour Court has rightly dismissed the Misc. Case No. 04/2007 and there is no infirmity in the impugned judgment dated 11.09.2013.

14. I have considered the submissions of the learned counsel for the parties and have perused the records.

15. Undisputedly, two Awards were passed by the Industrial Tribunal at Guwahati vide Award dated 11.11.2002, passed in Ref. Case No. 02/2000 and Award dated 31.08.2006, passed in Ref. Case No. 14/2004. The first Award relates to claim of wages of the employees and second Award was for closure compensation. The respondent No. 1 by way of a writ petition being WP(C)No.251/2007, has challenged the second Award dated 31.08.2006 passed in Ref. Case No. 14/2004, wherein, the Industrial Tribunal has held that the closure of the company was not bona fide and termination of the employees was illegal and they are entitled to compensation as per the provisions of the Act of 1947. In the said writ petition, the respondent No. 1 filed an additional-affidavit, bringing on record the fact that all the employees of the petitioner have accepted the closure compensation by declaring that they have no further claims Page No.# 9/12

against the respondent No. 1 as a full and final settlement.

16. This Court taking note of the settlement, has quoted the stand of the respondent No. 1, which is reproduced hereunder:

"5. Paragraph 4 of the additional-affidavit being relevant is quoted hereunder:

"That during the pendency of the writ petition, all the remaining 33 employees of the petitioner who are members of the respondent No. 2 have accepted the closure compensation as full and final settlement of their dues. The employees have been paid all their salaries, including the arrear salaries in the revised pay scale, which has been accepted by the said employees without any demur. The employees have declared that they have voluntarily severed their ties with the petitioner and have been released on closure of the petitioner. The said employees have further declared that they have no claim against the petitioner on any account whatsoever. The said employees have also given an indemnity in favour of the petitioner to indemnify the petitioner against all claims etc. The petitioner has, in total paid a sum of Rs. 1,841,03,896 (Rupees One Crore Eighty Four Lakhs Three Thousand Eight Hundred and Ninety Six) only to the said employees. Thus, the respondent No. 2 has accepted the closure of the petitioner and, therefore, the impugned Award dated 31.08.06 passed by the Industrial Tribunal at Guwahati in Reference Case No. 14/2004 has become redundant."

6. In view of the statements made in the additional affidavit, more particularly the statements made on oath to the effect that the employees have duly received and accepted the closure compensation, the award passed by the Tribunal is merged with the closure compensation and the same will not revive anymore as the employees have no further claim to be made from the petitioner company. In the above background this court is of the opinion that nothing remains to be adjudicated upon in this writ petition and the same stands disposed of with the observation made hereinabove.

17. Thereafter, vide impugned judgment dated 11.09.2013, the Labour Court had dismissed the Misc. Case No. 04/2007 filed under Section 33(C) (2) of the Act of 1947. The relevant Paragraphs of the judgment is reproduced hereunder:

"...The Hon'ble Gauhati High Court has also directed vide order staying the operation of the award dated 31.08.06 in Reference Case No. 14/2004. Thereafter, additional affidavit and also affidavit are filed by the writ petitioner and its drawn attention of the Hon'ble Gauhati High Court, the employees, the petitioner they have accepted the closure of Mill- Fertichem Ltd. and also accepted the closure compensation and they have declared that they have no further claims from the petitioner. It is also mentioned by the Hon'ble Gauhati Page No.# 10/12

High Court that in Para-4 of the affidavit the writ petitioner has reflected the following fact which comes as follows:

"That during pendency of writ petition all the remaining 33 employees of the petitioners who are members of the respondent No. 2 have accepted the closure compensation as full and final settlement of dues. The employees have been paid all their dues, salaries including arrear salaries in the revised pay- scale, which has been accepted by the said employees without any demur. The employees have declared that they have voluntarily severed their ties with the petitioner and have been released on closure of the petitioner. The said employees have further declared that they have no claim against the petitioner on any accounts whatsoever. The said employees have also given an indemnity in favour of the petitioner to indemnify the petitioner against all claims etc. The petitioner is in total paid a sum of Rs. 1,84,03896/- (Rupees One Crore eighty four lakh three thousand eight hundred ninety six) only to the said employees. The respondent No. 2 have accepted the closure of the petitioner and thereafter, impugned award dated 31.08.06 passed by Industrial Tribunal, Guwahati in Reference Case No. 14/2004 has become redundant. It is also found the Hon'ble Gauhati High Court it is also mentioned that the additional affidavit the copies of receipt issued by the employees they are also annexed collectively and marked as Annexure- A Series. It is also opined by the Hon'ble Gauhati High Court that in view of the additional affidavit and also statement made therein, the statement which was made on oath it is a fact that employees have received and accepted the closure compensation the award given by the Tribunal is merged with the closure compensation and same will not revive any more as the employees have no further claim to be the petitioner company. The Hon'ble Gauhati High Court also it is opined that a direction that in the above background it is discussed by the Hon'ble Gauhati High Court it is opined that nothing remains to be adjudicated upon this writ petition same can be disposed of with the observation made herein above.

4. From the above observation the Hon'ble Gauhati High Court has closed the chapter of payment to be given to the employees as the employees already have accepted Rs. 1,84,03896/- (Rupees One Crore eighty four lakh three thousand eight hundred ninety six) from the management of M/s Fertichem Limited. Therefore, I feel that in view of the above decision this Court does not have any authority to decide the fact that and as per the decision of the Hon'ble Gauhati High Court has accepted that the payment has been already made. Therefore, in view of the decision of the Hon'ble Gauhati High Court in W.P.(C). No. 251/2007 I have found that this Court does not have any authority to decide the fact again and also as Hon'ble Gauhati High Court has opined that all payment has been cleared up by the management. Therefore, the petition as filed U/s 33 C(2) does not maintainable in present form. Therefore, I have dismissed the petition accordingly by deciding the fact that practically no issue of the petitioner for getting compensation from the management. So, I have decided the issue against the petitioner. I have disposed the case as above in terms of order by dismissing the application filed U/s 33 C (2) of Industrial Dispute Act, 1947. I dispose the petition in the terms of above order."

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18. On perusal of the record produced by the learned counsel for the respondents, particularly, the Receipt-cum-Undertaking, it is clearly reflected that the employees including the petitioner herein, have received the full and final payment of all dues/settlement etc. The employees have declared that they have voluntarily severed their connection with the respondent No. 1 w.e.f. 31.08.2003 by accepting the closure. They had declared that no further claim from the respondent No. 1 shall be made on any account whatsoever. And they shall indemnify and keep the respondent No. 1 indemnified for all the charge etc. that may arise on the respondent No. 1.

19. The acceptance and declaration of the employees and the petitioner clearly reveals that they have accepted the settlement as a full and final settlement of all dues and claims. Thus, the Awards would merge with the full and final settlement of the claims and dues, which the employees including the petitioner have accepted with a clear declaration, as the petitioner has accepted the total amount of Rs. 6,64,712.00 (Rupees Six Lakh Sixty Four Thousand Seven Hundred Twelve Only) as a full and final settlement of his dues. Therefore, the claim for dues in terms of the first Award 11.11.2002 passed in Ref. Case No. 02/2000, would not be maintainable.

20. In view of what has been discussed hereinabove, I am of the considered view that there is no infirmity in the impugned judgment and order dated 11.09.2013 passed by the learned Labour Court, Guwahati, in dismissing the Misc Case No. 04/2007.

21. Accordingly, writ petition stands dismissed being devoid of merit. Cost(s) made easy.

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22. Return the records.

JUDGE

Comparing Assistant