WRIT PETITION NO.4931/1997. Executive Engineer Bisalpur Project (Division-I), PHED, Kekri, District Ajmer v. Bhura Ram Date of Order:- March 16 & Anr.

HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Chetan Bairwa, Additional Government Counsel. Shri Vigyan Shah with Shri Abdul Hanif for respondent No.1. BY THE COURT:- ***** This writ petition was filed by the petitioner-Executive Engineer Bisalpur Project (Division-I), PHED, Kekri, District Ajmer against the order dated 4/2/1997 by which, application filed by respondent No.1 under Section 33-C(2) of the Industrial Disputes Act, 1947 has been allowed by the labour court requiring the petitioner to pay to him a sum of Rs.1,79,937/- as back wages computed in terms of the earlier award of the labour court passed in his favour on 12/7/1994. 2) Shri Chetan Bairwa, learned Additional Government Counsel has argued that Labour court acted wholly illegally in allowing the application 2 SBCWP NO.4931/97. under Section 33-C(2) because the settlement was arrived at between the parties and in terms of the award, respondent No.1 was reinstated in service on 23/7/1994 and that he agreed that he would not claim any back wages and he abandoned his claim of back wages. Learned counsel for the petitioner invited the attention of the court towards the affidavit of respondent No.1 which is on record as Annexure-3. It is further submitted that the original affidavit was misplaced/removed from their record for which, first information report was lodged with the Police Station Kekri. 3) Shri Vigyan Shah, learned counsel for respondent No.1 has opposed the writ petition and submitted that even if the affidavit is accepted to be correct then also, respondent No.1 cannot be penalised in this manner because he is entitled to the benefits flowing from the award that was passed after adjudication in his favour. In the award, labour court held the termination of respondent No.1 illegal and declined that he is entitled to reinstatement in service with full back wages. Learned counsel for respondent cited the judgment of Supreme Court in Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguly & Anr. : 1986 (3) SCC 156 = AIR 1986 SC 1571 and argued that such a contract was unconscionable bargain because respondent No.1 was not in a position not to accept the terms directed 3 SBCWP NO.4931/97. by the mighty State like the petitioner and since there was no contract between the parties on equal footing, it would be hit by Section 33 of the Contract Act being opposed to the public policy. 4) Shri Chetan Bairwa, learned Additional Government Counsel has rejoined and submitted that on account of the settlement which was entered between the parties, petitioner-State decided not to file writ petition against the award. When they have acted by the settlement, respondent No.1 cannot be now permitted to go back his stand. 5) In the facts of this case, it cannot be said that settlement that was arrived at between the parties was a contract so as to come within the purview of Section 33 of the Contract Act, however, at the same time, it is also a fact that the award was passed in favour of respondent No.1 holding him entitled to reinstatement in service. Petitioner-State did not decide to file writ petition against the award in view of the settlement which is evident from the affidavit, correctness of which, is not denied by respondent No.1. 6) In my considered view, ends of justice would be met if respondent No.1 is not denied entire back wages but his claim for back wages is confined to only 50% awarded by the labour court under Section 33-C(2) of the Industrial Disputes Act, 1947. 4 SBCWP NO.4931/97. 7) In the result, writ petition is partly allowed. Amount of Rs.1,79,937/- is reduced to half. (MOHAMMAD RAFIQ), J.