1. Heard both sides.
2. In this writ petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the order dated 6-4-1999 of the Chairman, Industrial Tribunal and Presiding Officer, Labour Court, Visakhapatnam in EP No. 18 of 1998 in ITID No.6 of 1989 under which the learned Judge decided against the petitioner herein two questions raised as objections to the execution of an award in ID No.6 of 1989 under which the execution petitioner-respondent No.2 herein claims to be a beneficiary and seeks a direction in the nature of writ of prohibition against respondent No.1 from proceedings further in EP No.18 of 1998 in ITID No.6 of 1989.
3. The essential facts leading to filing of this writ petition may be stated briefly as follows:
The petitioner is a public limited company incorporated under the Companies Act, 1956 with its registered office at Secunderabad. It is engaged in the business of manufacture and sale of fertilizers. They have a factory at Malkapuram at Viskhapatnam which employes 800 workmen. Pursuant to the issuance of a notification under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 under G.O. Ms. No.375 dated 5-6-1981 prohibiting the engagement of the contract labourers in the canteen operations of the petitioner, the Coromandal Fertilizers Cafeteria Employees Association (the Unit) raised an industrial dispute which was referred for adjudication in ITID No.6 of 1989 before the Industrial Tribunal-cum-Labour Court, Visakhapatnam, respondent No.1 herein. The respondent No.2 was a member of the said union. The reference culminated in Award on 19-6-1991. The operative portion of the Award is as follows:
'......the workmen removed fromanteen operations service by theimplementation of the above said GO shall be appointed in the canteen operations of R1 in the canteen to be run by it subject to the necessity and suitability to maintain the said canteen and any surplus labour found may be kept in reserve list and be utilized subsequently for absorption as and when vacancy arises in the canteen service on the basis of their internal seniority.'
4. The award was duly published as required under Section 17 of the Industrial Disputes Act 1947 (for short 'the Act') on 25-7-1991 vide G.O. Rt. No.1404, dated 3-7-1991. It is stated that in terms of the award, a committee was constituted for selection of candidates for cafeteria service to assess the suitability and also consider the requirement of the company. It was found from the record that while he was working with the former contractors M/s. East Coast Caterors, he was chronic absentee and abstained from duty in an unauthorised manner habitually and under these circumstances the petitioner conveyed its inability to absorb the respondent No.2 on permanent rolls vide its letter dated 22-8-1991. However, it is stated that it had no objection to empanel him as a wait listed incumbent in accordance with the Award. Subsequently, the union of which respondent No.2 continued to be a member raised a charter of demand dated 14-6-1992 followed by a supplement charter dated 27-7-1992. Both of these were discussed in the memorandum of settlement dated 22-5-1993, which came to be signed under Section 12(3) read with Section 18(3) of the Act. The settlement became final as none of the parties challenged the validity of the same. It has been confirmed in the settlement that the Management has implemented the said award and never made any demand for absorption of any workman-employee in its charter of demands. In the preface of the settlement, the following statement was made:
'Whereas the Company absorbed the workmen engaged on contract basis by the erstwhile East Cost Caterers, Visakhapatnam, consequent to the award of the Hon'ble Industrial Tribunal-cum-Labour Court, Visakhapatnam, in ITID No.6 of 1989. the Hon'ble Industrial Tribunal-cum-Labour Court has awarded absorption of the workmen engaged by M/s. East Coast Caterers, Visakhapatnam strictly as per the requirements of the company and also on such wages as are allowed under Minimum Wages Act and Notifications there under issued by Government of Andhra Pradesh......'
5. This settlement was agreed to be enforced from 1-1-1993 to 31-12-1997. Various benefits including the revision of wages were incorporated in the settlement. One of the terms of the settlement was that 'this settlement will be in full and final settlement of all demands raised by the Association through their charter of demands dated June 14, 1992 and supplementary charter of demands dated July 27, 1992 and also those raised with the company from time to time and during the negotiations preceding and resulting into this settlement.'
6. It is thus averred that this settlement replaced the Award and also confirmed that there was no requirement of the company to have additional work force in the cafeteria. This being so, respondent No.2 filed an execution petition before the first respondent under Section 11-B of the Act with a prayer to direct the management to restore him to the permanent post of employment on par with other workmen under ITID No.6 of 1989 by way of implementation of the said award as a permanent workman. In that application for execution, respondent No.2 had also prayed that on the failure of his appointment as a permanent workmen, the Vice-President of the petitioner-company, A. Visweswara Rao may be arrested.
7. The petitioner entered appearance in response to the notice of this application. The petitioner requested the Court to frame preliminary issue by its petition dated 31-12-1998. The petitioner raised two objections to the execution of the Award. Firstly, it was pleaded that in view of Section 19(3) of the Act, the Award could not be implemented after the expiry of the prescribed period. The first respondent however dismissed that petition stating that Section 19(3) of the Act has to be read holding in view of Section 19(5) of the Act, and as such this objection cannot be entertained. The second objection raised was that the Award came to be superseded by the settlement dated 22-5-1993 and nothing remains of the said award for execution.
8. The first respondent took up this second objection as to supercession of the Award as a preliminary poin by allowing IA No.11 of 1998 filed on behalf of the petitioner. After elaborate discussion, the first respondent held by its order dated 6-4-1999 relying on the judgment of the Supreme Court that the preamble of the settlement was sufficient to find the settlement as unjust and unfair, even if the question of fairness or otherwise of the settlement was not raised, and accordingly held that the award cannot be held to have been superseded by the settlement and thus held that EP 18 of 1998 filed by respondent No.2 is maintainable. It is this order which is now challenged in this petition.
9. It is firstly contended that the labour Court has exceeded its jurisdiction in entertaining the execution petition under Section 11-B of the Act ignoring the well settled legal position. It is averred that the finding of the Labour Court is arbitrary and illegal. By merely referring to the preamble to the settlement it concluded that the entire settlement is unjust and unfair.Even though the settlement which has been signed under Section 12(3) read with Section 18(3) of the Act has not been questioned at all and worked itself out. It is pleaded that the Labour Court was not empowered to go behind the award or the settlement and consider the validity or the otherwise of the settlement in execution petition. This is beyond the pale of jurisdiction of the Labour Court. It is contended that the learned Judge has ignored Section 19(3) of the Act and as such the impugned order is vitiated. It is stated that the finding of the Labour Court that the settlement is vitiated is based on conjectures and surmises without dealing with the settlement in toto and it is said to be in teeth of two judgments of the Supreme Court in Herbertsons Lid. v. Their Workmen, 1976 (33) FLR 398 and M/s. Tate Engg and Locomotive Co. Ltd v. Workmen, 1981 (43) FLR 354.
10. It is contended that the settlement cannot be split into bits and pieces and some portions cannot be held to be good and acceptable and other objectionable. It is thus stated that the Labour Court has assumed jurisdiction which is not existent. It is pleaded that the award is merely in the nature of a declaratory decree. Since, in the present case, the award does not direct reinstatement of respondent No.2 the Executing Court could not issue any process for the purpose as it would beyond the decree. The contention is that the settlement was entered into after two years of the award, and the award must be deemed to have been automatically terminated. Thus, the execution petition is not maintainable to enforce non-existing award or an award which has merged with the settlement.
11. Respondent No.2 filed his counter-affidavit oppositing the petition. It is pointed out that the award became final in terms of Section 17 of the Act. The operative portion of award in Para 8 reads as follows:
The workman removed from the canteen operations service by the implementation of the above said GO shall be appointed in the canteen operations of respondent No.1 in the canteen to be run by it, subject to the necessity and suitability to maintain the said canteen and any surplus labour found may be kept in reserve list and be utilised subsequently for absorption as and when vacancy arises in the canteen service on the basis of their internal seniority'.
12. It is stated that when respondent No.2 approached the petitioner for implementing the award, they ignored his seniority and regularised the services of 13 of his juniors within the same cadre and designation and empanelled him on the rolls of employment as a workman kept in reserve in the wait list of the Coromandal Fertilizers Ltd. in terms of their office order dated 22-8-1991. Thus, he has been agitating for regularization of services with the Management and also with the Government. He has given a representation dated 16-4-1997 for implementation of the award. The petitioner herein has replied by its order dated 5-5-1976 wherein it has been admitted in para 5 that he along with another were kept on the wait list.
The validity of the award in ITID No.6 of 1989 was recognised. It was informed that as and when vacancy in the posts of washerman arise, their claims will be duly considered. It is pointed out that objections now raised in this petition were not raised by the petitioner-company in response to the representation given by respondent No.2 in the office order dated 5-5-1997 referred to above, it is averred that the petitioner is estopped from raising these objections at this stage.
13. It is stated that in the light of these assertions of the Management, the respondent No.2 once again gave his representation dated 17-5-1997 and 1-4-1998 specifically stating that actual vacant posts were available in his cadre. Even after these representations, the petitioner did not take any objection raised in this petition as well as in the affidavit filed in No.11 of 1998 in EP No.18 of 1998. Thus, the petitioner is estopped from raising these objections at this stage. Thus, it is asserted that his right to be absorbed as regular workmen on par with his juniors is absolute and cannot be denied. It is stated that the petitioner had no right to raise preliminary objections to the execution petition. The contentions raised in that objection petition and in this petition are not tenable. It is stated that the petitioner has violated that award inspite of subsisting agreement between the petitioner and the second respondent vide office order dated 5-5-1997. This office order amounts to an agreement between the petitioner and respondent No.2 and has been in force even before the settlement came into existence. Thus, it is asserted that respondent No.2 has every right to execute the award under Section 11(B) of the Act.
14. It is stated that the settlement has been entered into behind respondent No.2's back and without his knowledge. At any rate a right vested in the workmen cannot be nullified by the subsequent settlemant, and the settlement cannot replace or undo the award passed by the Court of law.
15. As seen above, in this writ petition the order of the Industrial Tribunal passed on the preliminary issue raised by the petitioner on the maintainability of the execution petition filed before the Tribunal by the respondent is challenged.
16. The objection as to maintainability is two fold. It is firstly contended that in view of sub-section (3) of Section 19 of the Industrial Disputes Act, the award inITID No. 6 of 1989 is no longer enforceable. The contention is that inasmuch as the said sub-section (3) of Section 19 of the Industrial Disputes Act postulates that an award shall remain in operation for a period of one year from the date on which the award becomes enforceable under Section 17-A of the Act i.e., on month after publication in the Gazettee, the application for executing the award filed in 1998 cannot be maintained.
17. The learned Counsel for the respondent No.2 on the other hand relies on sub-section (6) of Section 19 of the Act and contends that under the said provision notwithstanding the expiry of the period of operation of the award under sub-section (3), the award shall be continued to be binding on the parties until a period of two months has lapsed from the date on which notice is given by any party bound by the award by the other party or parties intimating its intention to terminate the award.
18. The question is whether these objections raised by the petitioner are tenable?
19. The learned Presiding Officer, Industrial Tribunal held that in view of sub-section (5) of Section 19 of the ID Act, the provision as to expiry of the award under sub-section (3) does not apply in this case.
20. The relevant provision of Section 19, namely, sub-sections (3), (5) and (6) may be extracted for convenience.
'19. Period of operation of settlements and awards :--
(1) xxx
(2) such settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months from the date on which the memorandum of settlement insigned by the parties to the dispute, and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date of which a notice in writing of an intention to terminate the settlement is give by one of the parties to the others party or parties to the settlement.
(3) An award shall, subject to the provisions of this Section remain in operation for a period of one year from the date on which the award becomes enforceable under Section 17-A :
Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit;
Provided further that the appropriate Government may before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time as it thinks fit, so however, that the total period of operation of any award does not exceed three years from the date on which it came into operation.
(5) Nothing contained in sub-section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after, it has been given effect to any continuing obligation on the parties bound by the award.
(6) Notwithstanding the expiry of the period of operation under sub-section (3), the award shall continue to be binding on the parties until a period of two months has lapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award.
(7) xxxx'
21. Sub-section (3) contemplates that an award shall remain in operation for a period of one year with effect from the date from which it is enforceable. Under second proviso to sub-section (3), the Government may before the expiry of the said period of one year, extend that period of operation by any period not extending one year at a time as it thinks fit, and that the total period of operation of any award does not exceed three years from the date on which it came into operation. Sub-section (5) provides that the provisions under sub-section (3) of Section 19 of the Act as to the period of operation of the award do not apply to an award which by its nature, terms or other circumstances does not impose after it has been given effect to any continuing obligation on the part of the parties bound by the award. If to the award in question, sub-section (5) applies considering the nature of the award, the award shall continue to be in operation notwithstanding the provisions in sub-section (3) of the Act prescribing certain period during which alone award could be in operation.
22. In this case, the award, contemplates that former employees of the canteen who were engaged as contract labour shall be absorbad in the canteen operations of the company subject to the need and suitability. In this case, after giving affect to the terms of the award, namely, after former employees engaged as contract labour are appointed as regular employees, no continuing obligation rests on the parties to the said award as mentioned in sub-section (5) of Section 19 of the Act and as such it can be said that subsection (3) of Section 19 of the Act does not apply to this award.
23. Sub-section (6) of the Act mandates that notwithstanding the expiry of the period of operation under sub-section (3) of the Act, the Award shall continue to be binding on the parties until it is terminated by notice of two months as contemplated under the said provision.
24. Admittedly, no notice has been given either on behalf of the Management or by the respondent and its union intimating their intention to terminate the award as contemplated under sub-section (6) of Section 19 of the Act.
25. The contention of the learned Counsel for the petitioner is that in view of the conduct of the parties in signing the statement after two years of the Award having become enforceable and operative, the notice as contemplated under Section 19(6) of the Act must be deemed to have been given.
26. The learned Counsel for the petitioner-company relies on the judgment of the Supreme Court in the case of Workmen of Western India Match Co. v. Western India Match Co., 1962 (1) ILLJ 661, in which it has been held that in the circumstances of the case, like varous representations made on behalf of the workmen and the presentation of the charter of demands leading to a subsequent settlement were sufficient to terminate the earlier settlement and absence of a formal notice under Section 19(2) of the Act terminating the earlier statement was immaterial. On facts, this does not seem to be applicable to the case on hand. It would appear that in that case that the parties had arrived at a settlement on 29-4-1955 in relation to among other things DA and the scales of pay. In the memorandum of settlement dated 23-5-1958 signed by both the parties, it was clearly provided that the revision of scales of pay shall be referred for adjudication by the same Industrial Tribunal which was dealing with the question of dearness allowance. It also appears that in the reply by the Management to the charter of the demands signed on behalf of the appellant-union, it was stated that the previous settlement had not been validly terminated and in answer to that the General Secretary of the Union wrote a letter saying that the various representations made by the union to the respondents therein and the presentation of the charter of the demands amounts to a notice of termination of settlement. It is the background of these facts, their Lordships of the Supreme Court held that though no formal notice under Section 19(2) of the Act was given, the letter itself can be construed as a notice within the meaning of that provision. In that case, the subsequent settlement was in respect of the same matter and demand which was also the subject matter of the settlement.
27. In this case, though in the preamble to the settlement, the question of absorption of the workers of the canteen run by the contractor has been mentioned, there is no reference in the substantive and operative parts of the settlement about the question of absorption of the contract labour of the canteen in the light of the abolition of the contract labour including the absorption of respondent No.2 herein. On the other hand, the preamble to the settlement records the fact that the award directing the petitioner-company to absorb the contract labour has been complied with. Thus, the subsequent settlement in this case does not deal with the subject matter of the previous award. If the settlement is in respect of the same demands and questions, which was the subject matter of the earlier award, the very fact of negotiations and entering into the settlement on the subject would lead to an inference that the parties consciously agreed to a settlement contrary to or not-withstanding what has been provided for under earlier award. Thus, considering the facts and circumstances of the case, it cannot be said that notice as required under Section 19(6) of the Act shall be deemed to have been given.
28. The second and some what related contention of the learned Counsel for the petitioner is that the subsequent settlementdated 22-5-1993 has been entered into by the Union of which the respondent admittedly has been a member, supersedes the earlier award and that the settlement is binding on second respondent.
29. The learned Counsel for the petitioner relies on the judgment of the Supreme Court in the case of the KCP Ltd. v. The Presiding Officer and others, , in support of his contention. In that case, an industrial dispute was referred to for adjudication pursuant to the demand of representatives of the union and the settlement was arrived at between the appellant industry and union of the workers. However, 12 workmen did not accept the settlement. It was accepted by the representatives of the Union. It was in the background of these facts, the Supreme Court held that the settlement being a package deal entered into by the Union in the best interest of the workers could not be said to be unfair or unjust and that it was held that the workmen who are not satisfied with the settlement could not challenge it unless there are exceptional circumstances to reject the settlement on the ground that it was unjust, unfair or was mala fide. It was also observed that a settlement entered into between the workmen and the management during the conciliation proceedings is binding not only on the representative union and their workmen but also all others who are interested in the dispute like other non-representative unions and their workers. At any rate, it has been held that individual workmen had no locus standi for separate representation when they were already represented by the union which espoused their cause.
30. In regard to the question as to justness or fairness of the settlement, it has been observed by the Supreme Court that it has to be considered in the light of the conditions that were in force at the time ofthe reference. In this context, it was further observed that it was not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settlement as unfair and unjust. The same principle has been laid down by the Supreme Court in the case of Barauni Refineries PSP v. IOCL and others, 1991 ILLJ 46 (SC).
31. The question of suppression of an award by a subsequent settlement would arise where the settlement covered the same ground and the same subject which was adjudicated under the award. In the case of National Engineering Industries Ltd v. State of Rajasthan, : (2000)ILLJ247SC , it has been held that where certain demands were raised but were left out and the settlement did not indicate conceding of such demands even where the settlement does not specifically mention the fact of the demands having been left out, such demands raised but so left out cannot constitute the subject matter of a reference under Section 10 of the ID Act.
32. In this case on hand, the question of absorption of the workers in the canteen formerly employed by the contractor as regular employees of the company, namely, Coramandal Fertilizers was not the subject matter of the demand which lead to settlement in question.
33. The charter of demands in Annexure I give by the Union of which respondent No.2 is a member, as far as the workmen in the canteen is concerned, calls for recruitment of required number of workmen in each category in the cafeteria for smooth functioning of cafeteria and such numbers shall be fixed in consultation with the association. It further mentions that incafeteria services no workmen other than the cafeteria employees shall be employed. It calls for revision of wages and allowances of the employees of cafeteria on par with certain categories. It also deals with certain other aspects of wages and allowances of the canteen employees. There is a supplementary charter of demands in Annexure II. It is submitted that in addition to the charter of demand dated 14-6-1992 referred to above, it demands that workers termed as temporary employees shall be made permanent. The wages of lady employees shall be increased and it makes some specific demands in the regard. It also mentions the demands like treating those engaged in rice cooking to be treated as promoted as cooks. It also raises some demand with regard to daily allowances. It demands that workmen in the cafeteria shall be assigned the jobs according to their designation and payment of consolidated allowances for those working in the canteen. It contains the demand to treat the senior most sweepers as waiters. It deals with provision of certain dresses, rent for the union office et
i. The only reference to the question of absorption of erstwhile contract labour engaged in the canteen vis-a-vis the award passed in ITID No.6 of 1989 in the settlement is in the form of preamble in the following words:
'Whereas the Company absorbed the workmen engaged on contract basis by the erstwhile East Coast Caterers, Visakhapatnam, consequent to the Award of the Hon'ble Industrial Tribunal-cum-Labour Court, Visakhapatnam, in ITID No. 6 of 1989. The Hon'ble Industrial Tribunal-cum-Labour Court has awarded absorption of the workmen engaged by M/s. East Coast Canterrs, Visakhapatnam strictly as per the requirements of the Company and also on such wages as are allowed under Minimum Wages Act and Notifications thereunder issued by theGovernment of Andhra Pradesh. However, at the time of absorption of these workmen effective 22-8-1991, the Workmen were drawing more wages than were allowed under Minimum Wages Act and Notifications and hence the Company took a liberal view and allowed them the same wages and service conditions as were obtained under M/s. East Coast Caterers, which according to subsisting settlement between them and the East Coast Caterers would be in force upto 31-12-1992. Whereas the Company had issued appointment letters to all individual workmen of M/s. East Coast Caterers and took them on the permanent rolls of the company on such terms and conditions as mentioned in the appointment orders. Whereas, the Cafeteria Workmen went on agitating raising one or other demands.
34. This reference to the question of absorption of the workmen cannot be read in any way as the settlement having superseded the award in respect of absorption of the erstwhile contract workers of the canteen. The terms in a settlement can be said to supersede the previous award or the settlement under two circumstances, (i) Where the previous settlement or award is specifically referred to and it is asserted that the terms in the new settlement supersede the terms of the earlier award or settlement; (ii) As held by the Supreme Court in the above cited cases where there are specific demands on the very subject and if those demands are bypassed, then impliedly the previous award or settlement can be said to have been superseded.
35. As seen above, the charter of demands does not raise the question of absorption of the erstwhile canteen workers as regular employees of the company. It refers to others terms and conditions ofsuch workmen. The settlement itself proceeds on the assumption that the obligations under the award have been complied with. What has been admitted to have been done cannot be said to have been rejected by supsression of the earlier award. The award requires the petitioner to appoint the former contract workers as regular employees of the canteen subject to two conditions as is obvious from the following terms in the award:
'The workmen removed from canteen operations service by the implementation of the above said G.O. shall be appointed in the canteen operations of R1 in the canteen to be run by it, subject to the necessity and suitability to maintain the said canteen and any surplus labour found may be kept in reserve list and be utilised subsequently for absorption as and when vacancy arises in the canteen service on the basis of their internal seniority.'
36. Thus, the respondent No.2 is entitled to be appointed as regular employee of the petitioner if the two conditions mentioned in the award are satisfied.
a. The first condition is as to necessity which obviously refers to the need in the canteen operations of the petitioner company. The Second condition as to the suitability refers to the eligibility and suitability of the workmen to be appointed as a regular employee. It also contemplates that even if the need for the canteen of the petitioner-company was not such as to enable the absorption of all the former employees of the canteen, then those in excess will be kept in reserved list and shall be appointed as and when vacancies arise.
37. When the settlement as seen above incorporates in the preamble a statement that this requirement under the award has been complied with by the petitioner company, it militates against the plain language to interpret the same as this demand having been rejected in the settlement.
38. If it was agreed during this settlement that the petitioner company has been freed from any obligation arising from the award as to absorption of former contract workers, it could have been stated so explicitly. Even if no mention was made, it could have been implied that this obligation ceased to exist. Bui, emphatic assertion on the part of the petitioner-company is that the obligation arising out of the award has been discharged. This cannot be a ground for assuming that the demand as to absorption of former contract workers shall be deemed to have been left out.
39. The learned Presiding Officer of the Industrial Tribunal has taken a view that the fact of assertion that this obligation under the award has been complied with or has been fulfilled being palpably false inasmuch as respondent No.2 who is admittedly a former contract labourer aspiring to be absorbed as a regular employee of the petitioner-company has not yet been appointed as such goes to show that the settlement is unfair and unjust. On this ground, the learned Judge held that the settlement cannot be said to supersede the award and extinguish the rights of the workmen under the award. The learned Judge observed that it is all the more so in view of specific provsion of Sections 2-A(2) and 11-B of the Act which are peculiar to Andhra pradesh in view of the State Amendments. This may be one view of the looking at the settlement.
40. But it is also possible to take an alternative view taking into consideration the correspondence between the respondent No.2 and the petitioner company. In the so called execution petition filed by respondent No.2 before the Tribunal, the respondents 2 asserted that all the while the Management of the petitioner-company has been assuring that the directions in the award shall be complied with.
41. In Para, 2, it is stated that 'since then the Management is assuring me throughout, both to my individual representations before the Management as well as statutory authorities of State Government. Yet till date the Management failed to implement the Award.
42. In Para 3, it is stated that 'that to all my representation's the Management replied on 5-5-1997, that it will regularize my services as soon vacancies arise in the post of washer. My further representation and the recent representation dated 1-4-1998 whereupon the vacancy position is also brought to the notice of the Management. As on date there are more than 10 posts of washer cadre are lying vacant, which are all permanent vacancies, in whose place the management is engaging contract labour illegally instead of regularising my employment.
43. In the same, the workmen specifically brought to the notice as to the existence of permanent vacancies which are said to have been caused by displacement of nine workers whose names have been mentioned. It is stated that these vacancies were filled with the contract labourers.
44. In reply to this in para 13 of the counter filed by the petitioner-company, it is denied that there were any vacancies in the place of persons named in the petition and that such vacancies were filled through engagement of contract labour. In para 9 of the counter filed by the company, it is stated that till date no permanent vacancy has arisen in the canteen in the category of washerman to which the petitioner belongs and as such the question of absorbing him also does not arise. Thus, the assertion on behalf of the respondent No.2 workmen that he has been sending representations tothe management for his absorption in terms of the award and various representations given by him in this regard and the replies given by the Management has not been specifically disputed.
45. A long with the stay vacate petition, some of the representations of the workmen and the reply by the petitioner-company have been filed. One of the representation given by respondent No.2 and another to the General Manager of the petitioner-company is dated 16-4-1997 which was sent by registered post under acknowledgment due. On behalf of the petitioner company, a reply dated 8-5-1997 has been sent to this representation. In this reply, it is asserted that the dispute between the canteen workers under the contractor and the petitioner company has been adjudicated in IT ID No.6 of 1989 on the reference made by the said company. It is asserted that the award passed therein is final. It is stated that the Management and the contractor acted in accordance with the directions given in the award. While the contractor paid retrenchment allowance, the management appointed under fresh appointment orders such of the persons who were considered suitable and kept some of them in the wailing list on the basis of interviews and evaluation. Lastly it is stated in the final para that as and when vacancies arose in that post of washers and if there is need to fill those posts, the claim of respondent No.2 shall be considered.
46. Thus, the obligation under the award is not repudiated. It is significant to note that this letter dated 5-5-1997 was written by the petitioner-company long after the settlement dated 22-5-1993. Thus, it was never the stand of the petitioner company that the settlement has superceded the award and that by virtue of the settlement, the petitioner-company has been extricated from the obligations under the award.
47. In the petition filed in this Court in para 7, it was asserted by the petitioner-company that after the award became operational, a committee was constituted for the selection of candidates for caferteria services to assess the suitability of the candidates and also considering the requirement of the company. It is stated that respondent No.2 also considered and on perusal of the record of service with the erstwhile contractor, M/s. East Coast Caterers with whom he was employed it was found that he was chronic absentee and absented from duty in an unauthorized manner habitually and under these circumstances, the petitioner is not obliged to absorb respondent No.2 on permanent rolls vide its letter dated 22-9-1991. It is further stated that however they have no objection to employ him in accordance with the award.
48. It is significant to note that this plea as to the unsuitability of respondent No.2 was not taken in the counter filed by the petitioner-company in the execution petition before the industrial Tribunal. This is not the plea taken in the letter dated 5-5-1997 addressed by the petitioner-company to respondent No.2. This assertion in para 7 of the petition in this Court appears to be an attempt of the petitioner company to wriggle out of its obligations under the award. The specific plea taken by the petitioner company in their letter dated 5-5-1997 was that respondent No.2 cannot make any claim for regularisation in the canteen services in any other post and that as and when vacancies in the posts of washers arise and if there is a need to fill those posts, his claim will be duly considered.
49. Thus, the allegation as to respondent No.2's unsuitability to the post stated in the petition is inconsistent with the earlier stand taken by the petitioner. The earlier stand shows that the petitioner expressed themselves to be bound by theaward and were willing to abide by the award subject to the conditions laid down in the award itself.
50. In view of the above discussion, it has to be held that the settlement dated 22-5-1993 does not supersede the award in ITID No.6 of 1989. The obligations of the petitioner to carry out the direction in the award continued to be enforceable. Respondent No.2's rights rooted in the award passed by the Industrial Tribunal which flow from the rights accrued to the workmen engaged as contract labour on the abolition of the contract labour under the Contract Labour (Regulation and Abolition) Act, 1970.
51. Thus, these rights cannot be said to have been dissipated by the process of suppercession of the award by the settlement as contended by the learned Counsel for the petitioner.
52. But, this does not conclude the question which triggered this petition. The question as to whether the award as such can be executed under Section 11-B of the Act and whether this provision can be invoked for executing the award which is in unexecutable form remains to be considered. If the award directed straight away that respondent No.2 and other former workers under the contract labour shall be absorbed as regular employees of the petitioner-company, then there would have been no difficulty in invoking Section 11-B of the Act for executing the Award.
53. But, as seen above, the award in this case is a conditional award. The final shape of the award in an executable form has to emerge from fulfillment of two conditions laid down in the award. The first condition as noted above is as to the need in the canteen services of the petitioner. It is asserted on behalf of respondent No.2 workman that there are vacancies caused by certain named persons and that hecould have been appointed in any of those vacancies. If this is true, the requirement as to the need shall to be satisfied. It has also been stated by respondent No.2 in his petition that the petitioner company has even engaged contract labour in the canteen operations inspite of its abolition. If this allegation is true, it is indicative of the need for employing labour in the canteen which again can be said to satisfy the requirement as to need. Secondly, the petitioner is required to consider the candidature of respondent No.2 and consider his suitability for the post.
54. These two conditions in the award have not yet been held to have been fulfilled. As stated above, the award appears to be a contingent award depending its implementation on fulfilment of certain conditions. It is something like a preliminary decree granted by the civil Court which as such cannot be executed but has to result in final decree before its execution is possible. Under these circumstances, I am constrained to hold that the award in the present form is not executable and it cannot be executed under Section 11-B of the Act. This does not preclude the Industrial Tribunal from taking further steps and enquire into the question whether the conditions upon which the final result of the award is contingent have been complied with. The prayer in the execution petition for arrest of the officer of petitioner No. 1 company cannot be conceded if the award is in the present form.
55. It is therefore directed that the Industrial Tribunal shall conduct necessary enquiry as to the fulfilment of the conditions of the award as to need and suitability for absorption of respondent No.2 in terms of the award. This writ petition is disposed of with the findings and directions.