1 S.B.CIVIL WRIT PETITION NO.7044/2006 Mehtar Shramik Sangh, Bikaner & Ors. v. Municipal Council, Bikaner & Ors. Date of Order :: 22 nd May, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Anil Vyas, for the petitioner. Mr. S.S.Ladrecha, for the respondents. .... The appropriate government by a notification dated 16.3.1990 referred an industrial dispute to the Labour Court, Bikaner in following terms:- “Whether the services terminated by the Administrator, Nagar Parishad, Bikaner of 143 labourers which is represented by Mahamantri, Bikaner Mehtar Shramik Sangh, Purani Line, Harijan Basti, Sri Gangasahar, is invalid or illegal, and if not to what extent they are entitled for the relief.” The Labour Court by its award dated 28.2.2001 answered the reference by setting aside the termination of 143 workmen being in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act of 1947”). An order was also passed for reinstatement of each workmen in service with compensation in a tune of of Rs.2500/-. A challenge was given to the award 2 aforesaid by way of filing a writ petition before this Court and that came to be rejected in limine on 26.3.2002. The Division Bench of this Court also dismissed an appeal preferred by the employer to challenge the award dated 28.2.2001 and the Single Bench judgment dated 26.3.2002, on 22.5.2002. The employer on 9.8.2002 by various orders reinstated the workmen, however, denied for payment of compensation as awarded and also the wages accruing to each workmen prior to the date of joining. The denial of compensation and wages as aforesaid was made in view of the fact that every workman tendered an undertaking before the Government of Rajasthan that they will not claim the compensation and also the wages accruing from the date of award to the date of joining. By this petition for writ the petitioner union is claiming for the compensation awarded to the workmen by the Labour Court and also the wages accrued to each workman from the date of award to the date of their joining the services as a consequent to the reinstatement made under the orders dated 9.8.2002. The contention of counsel for the petitioners is that as per clause (13) of the Vth Schedule of the Act of 1947, if the employer fails to execute an award then the same shall be unfair labour practice, thus, the denial of compensation as awarded and also the wages is an unfair labour practice, that is prohibited under Section 25-T of the Act of 1947. 3 Per contra, the stand of the employer is that every workman has given an undertaking that they will not claim for compensation and also the wages accruing for the period commencing from the date of award to the date of joining and, therefore, no unfair labour practice is adopted by the employer. Heard counsel for the parties. As per the provisions of clause (13) of Schedule Vth of the Act of 1947 failure to implement award, settlement or agreement by the employer is an unfair labour practice. In the instant matter it is no doubt that the employer has not implemented the award dated 28.2.2001 as a consequent to an undertaking given by the workmen that they will not claim any compensation awarded and also the wages accruing after passing of the award by the Labour Court till the date of joining. This Court is required to examine as to whether the undertaking given by the workmen was genuine and uninfluenced by any pressure. It is well settled that if any dominion is exercised, if any influence is acquired and abused to pressurise someone to do something or not to do something without free and independent judgment and that have some legal consequence, then the same is undue influence and that is a constructive fraud. In certain set of relations wherein by the nature of things an imbalance of power 4 and knowledge exists. A weaker dependent and the needy person or party may surrender its rights to dominant party, if undue influence is exerted. In the present matter the workmen were out of employment since 1988, the dispute raised by them was referred to the Labour Court for its adjudication in the year 1990 and the same was answered in the year 2001. The writ petition as well as the special appeals filed by the employer came to be rejected in the year 2002. The workmen, thus, were waiting for employment from about 14 years. The plight of the poor workmen, who were contesting their rights for quite a long time, could have been exploited by the respondents by making their reinstatement subject to withdrawal of the rights relating to compensation and wages. The Government of Rajasthan, before whom the undertaking was executed by the workmen, as a matter of fact was having no role in the dispute, however, it appears that it interfered with the matter to the extent of pressurising the workmen for not claiming the compensation awarded and the wages accruing from the date of award to the date of joining. The workmen were having no other option but to accept whatever condition imposed by the Government of Rajasthan and the employer to get themselves reinstated. The folly on the part of the workmen, therefore, is an out come of undue influence exerted by the Government of Rajasthan and also by the employer. Seeking undertaking for withdrawing the rights accrued under the award is highly unreasonable 5 and the denial to implement the award in totality by exerting undue influence is also an unfair labour practice and that is prohibited under Section 25-T of the Act of 1947. The unfair labour practice adopted by the employer in present case requires rectification. This petition for writ, therefore, deserves acceptance and, therefore, the same is allowed. The denial of the payment of compensation to the workmen as awarded by the Labour Court, Bikaner vide award dated 28.2.2001 is declared illegal. The respondent employer is directed to make payment of compensation to the workmen concerned as awarded by the Labour Court under its award dated 28.2.2001. The workmen shall also be entitled for the wages upto the date of their joining from the date the award dated 28.2.2001 acquired finality. ( GOVIND MATHUR ),J. kkm/ps.