Madan Singh & ors. vs The District Judge, Bikaner & ors.

Avoiding unnecessary details, the facts appertain to the present case are that the petitioners were appointed as light motor vehicle drivers with the respondents, until 30.06.2002; when their services were brought to an abrupt end, by the respondents. The petitioner raised an Industrial dispute, which was referred by the appropriate State Government, for adjudication to the Labour Court, Bikaner. The reference so made by the State Government culminated in the order dated 18.04.2012, whereby the termination of the petitioners'' service was found illegal and the stand/defence of the respondents that since the project had completed, the requirement of observing mandate of Section 25-G Industrial Disputes Act, 1947, was not necessary had been repelled. The court below recorded a finding that petitioners'' employment does not fall within the exception carved out in clause (bb) of 2 (oo) of the Industrial Disputes Act, 1947. In other words the Labour Court held that the employment in question was not contractual employment and as such compliance of provisions of Industrial Disputes Act, 1947, particularly encapsulated in 25 F and 25 G was indispensable. In light of such finding, the Labour Court directed reinstatement of all the workmen, as follows :- "VERNACULAR MATTER OMITTED"

The above referred award dated 18.04.2012, was challenged by the respondents, in a writ petition, being S.B. Civil Writ Petition No.1097/2012, which was dismissed by this Court, vide order dated 07.12.2012.

While rejecting the writ petition filed by the employer- respondent herein, their stance that the employment in question was fixed term employment was categorically rejected. The relevant portion of the judgment passed by this Court is reproduced hereunder :- It is also required to be observed that question of facts cannot be taken into consideration while deciding writ petition filed under Article 227 of the Constitution of India. Here, in this case, the petitioner employer is challenging the validity of award on factual aspect of the matter that appointment was for fixed term but there is, in fact, no evidence on record to prove the said fact. Therefore, I see no reason to interfere in the award impugned in this writ petition.

The above referred order and the findings recorded therein have attained finality. In a camouflaged compliance of the order of the Labour Court, the respondents offered appointment to the petitioners, by way of an offer letter dated 15.02.2013, alongwith a contract agreement to be signed on a non-judicial stamp, which too was for a period of one year only.

The petitioners flatly declined such offer and approached the Executing Court under Section 11 (9) (10) of the Industrial Disputes Act, 1947, for enforcement of their rights flowing from the award dated 18.04.2012.

The Executing Court, however, rejected their application for execution inter alia observing that having refused to accept the offer made vide letter dated 15.02.2013, petitioners - Labourers were not entitled for any indulgence. The Learned Executing Court rejecting the petitioner''s claim, vide order dated 17.01.2015, observed thus :- "VERNACULAR MATTER OMITTED"

In light of the facts narrated above, learned District Judge, Bikaner, the Executing Court concluded that as the petitioners themselves did not accept the offer of the appointment made by the respondents, they are not worthy of getting relief of reinstatement. The Court however, held the petitioners entitled to a sum of Rs.7800/- per month from the date of award 27.07.2012 till 28.02.2013, the date of refusal of the offer by them.

Petitioner''s claim for seeking employment has been outrightly turned down by the Executing Court, finding the petitioners at fault, in not accepting the offer of appointment, made by respondents, which offer according to the Court below was neither contrary to law nor below their stature.

I have heard Mr. RS Saluja and Mr. Ajay Vyas, learned counsel for the parties, at length.

A bare look at the order impugned dated 17.01.2015, passed by the Learned District Judge, Bikaner, shows that the same is not in consonance with the judgment and award dated 18.04.2012, passed by Labour Court.

The Labour Court vide its order dated 18.04.2012 duly ratified by this Court on 07.12.2012, had given a categorical finding that the petitioners'' relation with the respondents was not that of contractual employees and that their termination / retrenchment was illegal while declaring them entitled for reinstatement, alongwith all consequential benefits, except back wages.

In wake of such finding and adjudication of rights, in considered view of this Court, the letter / offer of the appointment dated 15.02.2013 is a cloak or disguise to portray the compliance of the award dated 18.04.2012. As noticed above, the offer of appointment, for one year, that too under a contract, cannot be accepted to be a proper compliance, by any standard of prudence.

The learned Executing Court has fallen into a menifest error of law, in treating the offer of appointment as due compliance of the judgment and award dated 18.04.2012 passed by Labour Court. As such the respondent can neither shirk from their responsibility nor can they be absolved from their liability by offering the appointment, which is a force.

The Executing Court had non suited the petitioners solely on the ground of non-acceptance of such offer and has slammed the doors of justice for them.

The order of the Executing Court dated 17.01.2015 impugned in the present writ petition is clearly contrary to the judgment and award dated 18.04.2012 and liable to be quashed; Which I hereby do.

The matter is remanded back to Executing Court to hear and decide application, afresh, strictly in terms of the judgment and award dated 18.04.2012. Since the petitioners are out of the employment for a considerably long period, (since 2000), it would be in the fitness of things and interest of justice that the Court decides the execution application filed by the petitioners, within a period of 12 months from today. The writ petition is allowed.