By means of this writ petition, the petitioners have prayed for a writ in the nature of certiorari quashing the order dated 1-12-2003 passed by As sistant Labour Commissioner Haridwar, and further to issue writ, in the nature of mandamus command ing the respondents to give employ ment to the petitioners directly with out taking the contractor in between. 2. The facts, in brief, are that M/ s Bharat Heavy Electricals Limited, Ranipur, Haridwar (for short BHEL) engaged the petitioners as gardeners (Malies) to sweep, clean, maintain and look after the lawns and parks inside the factory premises and the campus of residential colonies. The petitioners were engaged for the pur pose, through the agency of S/sri Malkhan Singh, K. P Singh Chauhan and Mahendra Singh. Services of the petitioners were terminated without applying the provisions of Section 6n of Industrial Dispute Act, 1947 w. e. f. 1-12-1988. The petitioner raised in dustrial dispute no. 31-44/90 before the Labour Court, Dehradun who found termination. of the petitioners illegal and accordingly passed an award on 5-7-1996 in favour of the petitioners for reinstatement of the petitioners either through contractors or directly by the BHEL. 3. Aggrieved by the award, the B. H. E. L. filed a Civil Misc. Writ pe tition no. 2109 of 1997 in the High Court of Allahabad. When the recov ery process was started before the Deputy Labour Commissioner, Meerut, the B. H. E. L. obtained stay order in Civil Misc. writ petition no. 41787/98 and when the Assistant La bour Commissioner, Saharanpur is sued notice u/s 14a of U. M. D. Act 1947, the B. H. E. L. again approached the High Court, Allahabad by means of W. P no. 1654 of 1999 seeking stay of the proceedings u/s 14a of UPID Act, 1947. The Allahabad High Court by a common judgment dated 17- 02 1999 dismissed writ petition nos. 2109 of 1997 and 41787 of 1998 and disposed of writ no. 1654 of 1999 holding that the petitioners are employees of B. H. E. L. Aggrieved by the order of High Court, the B. H. E:l. approached Honble Apex Court and the Honble. Supreme Court vide its order dated 21-07- 2003 dismissed the appeal and has affirmed the or der of the High Court of Allahabad. The Honble Supreme Court also dis missed the review petition preferred by the B. H. E. L. 4. Supreme Court vide its order dated 21-07- 2003 dismissed the appeal and has affirmed the or der of the High Court of Allahabad. The Honble Supreme Court also dis missed the review petition preferred by the B. H. E. L. 4. Since the BHEL did not pro vide appointment to the petitioners even after the dismissal of the appeal by the Apex Court as well as the re view petition, the petitioners initiated proceedings u/s 14a of the U. P. In dustrial Dispute Act, 1947 for execu tion of the orders. The matter was pending before Asstt. Labour Com missioner, consequently the petition ers filed writ no. 1255 of 2003 for a direction to respondents to decide the application of the petitioners. 5. This Court on 5-9-2003 in writ petition no. 1255 (S/s) 2003 has passed the following order ". . . . . . . . Without entering into the merits of the controversy, the re spondent is directed to dispose of the application of the petitioner in accordance with law within a pe riod of four weeks after receiving certified copy of this order. The observations made above, shall not come in the way of the Labour Commissioner to dispose the ap plication of the petitioner on merit. With the above observa tions, the writ petition is disposed of. There will be no order as to costs. " 6. In compliance of order dated 05-09-2003 passed by this Court, Asstt. Labour Commissioner passed impugned order dated 01-12-2003, which is under challenge in the present petition. 7. Asstt. Labour Commissioner, while disposing the application has framed following three issues for de termination 8. While deciding issue no. 1, the respondent has held that since the Award passed by the Labour Court was upheld by the High Court and the Apex Court has dismissed the appeal filed against the judgment of High Court. Now what is to be imple mented is the Award of Labour Court and the Labour Court has not held that the petitioners were employees of BHEL or the petitioners were to be absorbed in the service by the BHEL, as such, as per Award of Labour Court, the petitioners are entitled for re instatement by the Contractor and in case the Contractor fails to reinstate them, the BHEL should reinstate the petitioners in service. The petitioners are entitled to get the same salary, which they were getting at the time of termination of their services. 9. Heard Sri V. C. Mishra Senior Advocate assisted by Sri V K. Visht, & Sri Lok Pal Singh, learned counsel for the petitioners and Sri VK. Kohli, learned Counsel for the respondents. 10. Grievance of the petitioners is that after the High Court and Honble the Supreme Court have found the petitioners employees of the B. H. E. L. , the award passed by the Labour Court is merged with the judgment of the High Court and the judgment of High Court has merged with the judgment of Supreme Court. But while passing the order dated 01 12-2003 the Assistant Labour Com missioner has declared the petitioners as contract labour and they are di rected to join with the contractors. Not only this, during the proceedings before the Assistant Labour Commis sioner, the B. H. E. L. has submitted a letter dated 28-11-2003 stating therein that one Sri K. P Singh Con tractor is ready to re-employ the pe titioners as contract labour which is contrary to the orders of the Honble Supreme Court. 11. It has further submitted by the counsel for the petitioners that there are hundred of posts of Mali lying vacant in regular capacity in the B. H. E. L. But the Assistant Labour Commissioner has disposed of the application of the petitioners stating therein that the B. H. E. L. has rightly decided to re-employ the petitioners as contract labour. The petitioners have contended that the High Court has recorded a finding in W. P no. 2109 of 1997 M/s. Bharat Heavy Electricals Ltd. Vs. State of UP and others as under ". . . . . . At the very outset, it may be mentioned here that the Labour Court has recorded a finding of fact that 14 workmen had, in fact, been engaged for a period more than 240 days in 12 calendar months, and, therefore, the termi nation of their services without complying with the provisions of Section 6-N of the Act was illegal. . At the very outset, it may be mentioned here that the Labour Court has recorded a finding of fact that 14 workmen had, in fact, been engaged for a period more than 240 days in 12 calendar months, and, therefore, the termi nation of their services without complying with the provisions of Section 6-N of the Act was illegal. A finding of fact has further been recorded that the workmen had worked under the control of the petitioner and, therefore, the de vice of employing the contractor, i. e. an intermediary between the workmen and real employer was nothing but an attempt to camou flage the direct relationship of em ployer and employer and em ployee between the petitioner and the workmen. . . . . . " 12. The aforesaid finding was af firmed by Honble Supreme Court, thus the petitioners for all practical purposes were declared as employees of the B. H. E. L and Honble Supreme Court has also confirmed it. It has been further submitted that in view of the terms and conditions laid down u/s 25 (v) (a) of Contract Labour Regulation and Abolition Rules 1971, it has been described that in case where the workmen employed by the contractor, perform the same or simi lar kind of work as is done by the workmen directly employed by the principal employer of the establish ment, the wage rates, holidays, hours of work and other conditions of the service of the workmen of the con tractor shall be the same as applica ble to the workmen directly employed by the principal employer of the es tablishment for the same and similar kind of work. 13. On the other had a counter affidavit has been filed by the re spondent no. 2 stating therein that in compliance to the award dated 5-7 1999 the respondent has chosen to employ the petitioners through ton tractor and at their directions Sri K. P. S. Chauhan, contractor has writ ten letter to all the petitioners asking them to report for duty. Thereafter the respondents had also issued a letter dated 13-1-2004 for reporting for duties to Sri K. P. S. Chauhan within 48 hrs. from the date of serv ice of the said notice. 14. It has been further contended that since the award dated 5-7-1996 given by Labour Court, Dehradun has become. Thereafter the respondents had also issued a letter dated 13-1-2004 for reporting for duties to Sri K. P. S. Chauhan within 48 hrs. from the date of serv ice of the said notice. 14. It has been further contended that since the award dated 5-7-1996 given by Labour Court, Dehradun has become. final; hence the allega tions have no relevance. The High Court of Allahabad has dismissed the writ petition filed by the respondent no. 2 and Honble Supreme Court has also dismissed the appeal, hence the award has been confirmed. The Honble High Court did not vary the award of Labour Court, Dehradun, hence it is to be implemented, but the petitioners are misinterpreting the matter. The respondent no. 2 has duly complied with the award given by the Labour Court but the petition ers are not accepting the employment through contractor. 15. It has been further contended that the award of the Labour Court was not challenged by the petitioners, therefore, they cannot raise any plea against the award. The principle of merger does not apply because the writ petition and the appeal preferred by the respondent have been dis missed. Neither the High Court, nor the Honble Supreme Court has di rected the respondent no. 2 to em ploy the petitioner directly and the award passed by the Labour Court was not at all altered or varied. The respondent no. 2 has been given a liberty either to employ the petition ers directly or through contractor. It was also denied by the respondent no. 2 that at the time of termination the petitioners were the employees of the BHEL and they are to be rein stated by BHEL. 16. Learned counsel for the pe titioners Sri V. C. Mishra has submit ted that the doctrine of merger will be applicable in the present case and it is the judgment of the Apex Court which is to be executed. In support of his submissions he has placed re liance on the judgment of Apex Court in the case of Kunhayammed and others us. State of Kerala and another reported in 2000 (6) Supreme Court Cases, page 359. 17. In support of his submissions he has placed re liance on the judgment of Apex Court in the case of Kunhayammed and others us. State of Kerala and another reported in 2000 (6) Supreme Court Cases, page 359. 17. Honble Supreme Court in the aforesaid case while explaining Doctrine of merger has held in para 12 as under "the logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same sub ject-matter at a given point of time. When a decree or order passed by an inferior court, tribu nal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its final ity is put in jeopardy. Once the superior court has disposed of lis before it either way-whether the decree or order under appeal is set aside or modified or simply con firmed, it is the decree or order of the superior court, tribunal or au thority which is the final, binding and operative decree or order wherein merges the decree or or der passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the su perior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view. " 18. In para-27, the Apex Court has held that in case a petition for leave to appeal is dismissed by a non- speaking order it would not at tract the Doctrine of merger but if the order of dismissal is supported by reasons then also the Doctrine of merger would not be attracted be cause the jurisdiction exercised was not an Appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. Still the reasons stated by the Court would attract applicability of Art. 141 of the Constitution, if there is a law declared by the Honble Supreme Court which obviously would be binding on all the Courts and Tribu nals in India and certainly the parties thereto. The Apex Court in para-41 has held that once leave to appeal is granted, any order passed thereafter would be an Appellate order and would attract the applicability of Doc trine of merger. The Apex Court in para-41 has held that once leave to appeal is granted, any order passed thereafter would be an Appellate order and would attract the applicability of Doc trine of merger. It would not make a difference whether the order is of reversal or of modification or of dis missal affirming the order appealed against. It would also not make any difference If the order is speaking or der or non speaking one. 19. The Apex Court has sum up by giving conclusion in para-44 which reads as under (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before su perior forum and such superior forum modifies, reverses or af firms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior fo rum and it is the letter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second state commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii ). . . The superior jurisdiction should be capable of reversing, modifying or affirming the or der put in issue before it. Un der Article 136 of the Consti tution the Supreme Court may reverse, modify or affirm the judgment-decree or order ap pealed against while exercising its appellate jurisdiction and not while exercising the discre tionary jurisdiction disposing of petition for special leave to appeal. The doctrine or merger can therefore be applied to the former and not to the latter. (iv ). . . . . (v) If the order refusing leave to appeal is a speaking order, i. e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. . . . . (v) If the order refusing leave to appeal is a speaking order, i. e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Sec ondly, other than the declara tion of law, whatever is stated in the order are the findings re corded by the Supreme Court which would bind the parties thereto and also the court, tri bunal or authority in any pro ceedings subsequent thereto way of judicial descriptions the Supreme Court being the Apex Court of the country (vi) Once leave to appeal has been granted and appellate jurisdic tion of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modifica tion or merely affirmation. (vii) 20. I find force in the submis sions of learned counsel for the peti tioners. Against the Award of Labour Court the respondent filed writ peti tion, which was dismissed. Against the dismissal of the writ petition by the High Court, the respondent ap proached Honble Supreme Court and the Apex Court dismissed Civil Appeal no. 2459-2461 of 1999 by its judgment dated 21-07-2003. Since the Apex Court has exercised Appel late jurisdiction and has dismissed the appeal, on merit, after hearing both the parties, the Doctrine of merger would attract. 21. The Honble Apex Court in the present case has recorded find ings that "it is not possible for us to hold that such concurrent findings re corded by the Labour Court and the High Court that the workmen were to be treated as the employees of the appellant are either perverse or based on no evidence or untenable at all. " 2. 2. In view of above findings, the workmen were to be treated as the employees of the appellant. 23. On the other hand, learned counsel for the respondents Sri V. K. Kohli has placed reliance on the judg ment of Apex Court reported in State of Madras vs. Madurai Mills Co. Ltd. ; AIR 1967 Supreme Court, page 681 (V 54 C 146) wherein the Honble Supreme Court in para-6 has held as under ". . . . . . . . Ltd. ; AIR 1967 Supreme Court, page 681 (V 54 C 146) wherein the Honble Supreme Court in para-6 has held as under ". . . . . . . . But the doctrine of merger is not a doctrine of rigid and uni versal application and it cannot be said that wherever there are two orders, one by the inferior Tribu nal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appel late or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the appli cation of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provi sions conferring, the appellate or revisional jurisdiction. . . . . . 24. The Apex Court in the case of Kunhagammed and others (Supra) has accussed the aforesaid citation. 25. The respondent cannot take benefit of the authority cited above. As already stated above in the present case, the Apex Court has ex ercised its Appellate jurisdiction by dismissing the appeal after recording findings. 26. Sri V. K. Kohli, learned coun sel for the respondent has further submitted that in any case the Honble Supreme Court has not modified the order of the Labour Court or the High Court and mere observations made in the judgment cannot be looked, on the contrary it is the ratio which has been decided by the Supreme Court is to be looked. I do not find force in the sub mission of learned counsel for re spondent that the observation made in the judgment cannot be looked into for the reasons that in the present case it is not merely an ob servation of the Apex Court but the Apex Court has recorded findings. 27. In the present case, the La bour Court while passing the award had framed certain issues. One of the issues is issue no. 3 to the effect that "whether opposite party no. 1 is not employer of the petitioner?" While deciding the aforesaid issue, the La bour Court has recorded a finding as under 28. 27. In the present case, the La bour Court while passing the award had framed certain issues. One of the issues is issue no. 3 to the effect that "whether opposite party no. 1 is not employer of the petitioner?" While deciding the aforesaid issue, the La bour Court has recorded a finding as under 28. However, in the operative portion of the award, the Labour Court directed the B. H. E. L. to re-em ploy the petitioners as directly through B. H. E. L. or through the con tractor and in the case of failure, the BHEL shall be responsible to rein state the petitioners. 29. The aforesaid award was challenged by the B. H. E. L. before the High Court and the High Court while disposing the writ petition, has re corded its finding as under " There is no dispute about the fact that the respondent workmen were engaged for working as gar deners in the factory promises, campus and residential colony-of the petitioner. Ram Sahai, Head Mali was admittedly employed by the petitioner. It was he, who used to supervise the work of the re spondent nos. 6 to 19. Another employee of the petitioner was Head Mali Sadhu Ram. It was he, who used to maintain the record of attendance of the workmen. It has come in evidence that Sadhu Ram used to keep the record of the attendance of the respondent workmen and that when a dispute arose consequent upon their dis engagement, he destroyed the same by tearing it off at the in stance of one Varshney who was the Manager in the petitioner-es tablishment. If the workmen were, in fact, engaged by independent contractors, the record of their at tendance should have been main tained by them and the control and supervision on the duties per formed by the 14 persons should, in all probability, have been that of the independent contractors. In view of the positive findings of fact recorded by Labour Court that the petitioner had control and supervision over the work and duties to be performed by the re spondents-workmen and that the record of their attendance was be ing maintained by the employees of the petitioner, there can be no escape from the conclusion that the respondent-workmen were un der the direct employment, super vision and control of the peti tioner. Sometimes, the employers, with a view to get over stringent provisions and prescriptions of the labour law, resort to a device to engage the workmen through some intermediary. Such an ar rangement has to be termed as artificial and not real. " 30. The High Court has further held as under " The findings of facts recorded by the labour court cannot be scruti nized , or sifted in this writ petition. The tone and tenor of the employ ment of the respondent-workmen makes it amply clear that they were, for all practical purpose, were the employees of the peti tioner. The petitioner had retained direct control over the work and the duties of the respondent-work men. The attendance of the work men was also recorded by an em ployee of the petitioner. The in volvement of the alleged direct contractors was merely a figura tive. The engagement of the con tractor was sham and not genuine. Therefore, if the fictitious agency, which was brought into existence as a device to camouflage the sta tus of the respondent-workmen, is ignored, they would be treated to be in the direct employment of the petitioner" 31. The High Court has also taken note of the fact that it cannot be forgotten that the petty workmen are generally pitted against a mighty employer. The workmen find it diffi cult to ventilate their grievances against all powerful employer. The workmen are, kept out of job to end lessly keep waiting for award and thereafter, resulting in further litiga tion and delay in enforcement of their rights. The management would always keep the workmen at bay by denying them absorption. 0 32. In the operative portion, the High Court while dismissing the writ petition nos. 2109 of 1997 and 41787 of 1998 disposed of writ peti tion no. 1654 of 1999 and stayed the proceedings against the B. H. E. L. u/s 14-A of the Act provided the B. H. E. L. deposits a sum of Rs. 2,17,000/- with the Deputy Labour Commissioner within a period of one month. 33. Aggrieved with the order of High Court, the petitioner preferred appeals before the Honble Supreme Court which were numbered as 2459 2461 of 1999. These appeals were dismissed after hearing the parties by the Honble Supreme Court vide judgment dated 21st July 2003. 2,17,000/- with the Deputy Labour Commissioner within a period of one month. 33. Aggrieved with the order of High Court, the petitioner preferred appeals before the Honble Supreme Court which were numbered as 2459 2461 of 1999. These appeals were dismissed after hearing the parties by the Honble Supreme Court vide judgment dated 21st July 2003. The Honble Supreme Court has held that the Labour Court on the basis of the evidence concluded that the appel lant was the principal employer. The Honble Supreme Court has also quoted the finding of Labour Court as under "from the statements of Ram Swarup who is Head Mali under Employer no. 1, it appears that though the concerned workers were employed at work by the contractor but he himself used to take work from them in the capac ity of Head Gardener and he also used to look after their work. The contractor used to pay salary only and their attendance were used to be marked in a separate Register by another. Head Gardener Sadhu Ram and the Register was got torn by Manager Shri Varshney so that no proof may remain and after tearing of register, workers were removed. From these, it appears that employer no. 1 had control over the plaintiff workers and they cannot be said to be the workers only of the contractor. It appears that with the object to keep them out of the ambit of UP Industrial Dispute Act, this method was adopted that work was taken from them by the employee of the em ployer and payment should be shown to have been made by the contractor. From the statements of Shri K. PS. Chauhan, contractor, it appears that he still has work con tract in BHEL (Laying of Sever Pipe Line ). From the complaints made by workers in this regard this fact is confirmed. As per the statements of worker Vinod Kumar, before tearing of the At tendance Register, workers had got photocopies of these done by taking these registers from Head Mali which copies have been filed by the worker party in the Court. Not filing the records concerning the attendance of workers by both employer no. 1 and 2 destroying the same and filing of photocopies of the same by the worker party prove that employer no. Not filing the records concerning the attendance of workers by both employer no. 1 and 2 destroying the same and filing of photocopies of the same by the worker party prove that employer no. 1 can also not escape from the liability of illegal termination of services of these workers. Hence, it is decided that the Respondent no. 1 is also the employer of plaintiff workers, though principal employer. " 34. The Honble Supreme Court has further held that "thus, consid ering the evidence, the facts and cir cumstances of the case and findings of fact recorded by the Labour Court, the High Court held that the work men were under the direct employ ment, supervision and control of the appellant observing that sometimes, the employers, with a view to get over stringent provisions of the la bour law, resort to engage the work men through some intermediary and such an arrangement has to be termed as artificial. 1 x x x We have no good reason or valid ground to upset the concurrent find ing of fact recorded by the Labour Court as affirmed by the High Court in this regard. x x x This apart, the finding that the re spondents/workmen were the em ployees of the appellant, does not rest merely on the test of control. The other evidence and facts and circum stances of the case were also kept in mind in recording such a finding in cluding a vital fact that the appellant did not produce the records alleging that they were not available which led to drawing adverse inference against them. It is not possible for us to hold that such concurrent findings recorded by the Labour Court and the High Court that the workmen were to be treated as the employees of the appellant are either perverse or based on no evidence or untenable at all. " 35. The Honble Supreme Court has affirmed the findings recorded by the Labour Court as well as the High Court. As discussed above, against the Award of Labour Court, writ pe tition was filed before the High Court by the respondent which was dis missed. Aggrieved by the order of High Court, the respondent ap proached Honble the Supreme Court and the Apex Court has also, in its Appellate jurisdiction, dismissed the appeal. As discussed above, against the Award of Labour Court, writ pe tition was filed before the High Court by the respondent which was dis missed. Aggrieved by the order of High Court, the respondent ap proached Honble the Supreme Court and the Apex Court has also, in its Appellate jurisdiction, dismissed the appeal. Thus, since the Apex Court has exercised its Appellate jurisdic tion and has dismissed the appeal on merit, after recording findings, the judgment of lower Court merges with the judgment of Honble Supreme Court. The Honble Supreme Court has recorded a finding that "it is not possible for us to hold that such con current findings recorded by the Labour Court and the High Court that the workmen were to be treated as the employees of the appellant are ei ther perverse or based on no evi dence or untenable at all. "the afore said findings contained in the order is a declaration of law by the Honble Supreme Court within the meaning of Article 141 of the Constitution of In dia even otherwise whatever is stated in the order are the findings recorded by the Honble Supreme Court which would bind upon the partiesby means of this writ petition, the petitioners have prayed for a writ in the nature of certiorari quashing the order dated 1-12-2003 passed by As sistant Labour Commissioner Haridwar, and further to issue writ, in the nature of mandamus command ing the respondents to give employ ment to the petitioners directly with out taking the contractor in between. 2. The facts, in brief, are that M/ s Bharat Heavy Electricals Limited, Ranipur, Haridwar (for short BHEL) engaged the petitioners as gardeners (Malies) to sweep, clean, maintain and look after the lawns and parks inside the factory premises and the campus of residential colonies. The petitioners were engaged for the pur pose, through the agency of S/sri Malkhan Singh, K. P Singh Chauhan and Mahendra Singh. Services of the petitioners were terminated without applying the provisions of Section 6n of Industrial Dispute Act, 1947 w. e. f. 1-12-1988. The petitioner raised in dustrial dispute no. 31-44/90 before the Labour Court, Dehradun who found termination. of the petitioners illegal and accordingly passed an award on 5-7-1996 in favour of the petitioners for reinstatement of the petitioners either through contractors or directly by the BHEL. 3. The petitioner raised in dustrial dispute no. 31-44/90 before the Labour Court, Dehradun who found termination. of the petitioners illegal and accordingly passed an award on 5-7-1996 in favour of the petitioners for reinstatement of the petitioners either through contractors or directly by the BHEL. 3. Aggrieved by the award, the B. H. E. L. filed a Civil Misc. Writ pe tition no. 2109 of 1997 in the High Court of Allahabad. When the recov ery process was started before the Deputy Labour Commissioner, Meerut, the B. H. E. L. obtained stay order in Civil Misc. writ petition no. 41787/98 and when the Assistant La bour Commissioner, Saharanpur is sued notice u/s 14a of U. M. D. Act 1947, the B. H. E. L. again approached the High Court, Allahabad by means of W. P no. 1654 of 1999 seeking stay of the proceedings u/s 14a of UPID Act, 1947. The Allahabad High Court by a common judgment dated 17- 02 1999 dismissed writ petition nos. 2109 of 1997 and 41787 of 1998 and disposed of writ no. 1654 of 1999 holding that the petitioners are employees of B. H. E. L. Aggrieved by the order of High Court, the B. H. E:l. approached Honble Apex Court and the Honble. Supreme Court vide its order dated 21-07- 2003 dismissed the appeal and has affirmed the or der of the High Court of Allahabad. The Honble Supreme Court also dis missed the review petition preferred by the B. H. E. L. 4. Since the BHEL did not pro vide appointment to the petitioners even after the dismissal of the appeal by the Apex Court as well as the re view petition, the petitioners initiated proceedings u/s 14a of the U. P. In dustrial Dispute Act, 1947 for execu tion of the orders. The matter was pending before Asstt. Labour Com missioner, consequently the petition ers filed writ no. 1255 of 2003 for a direction to respondents to decide the application of the petitioners. 5. This Court on 5-9-2003 in writ petition no. 1255 (S/s) 2003 has passed the following order ". . . . . . . . Without entering into the merits of the controversy, the re spondent is directed to dispose of the application of the petitioner in accordance with law within a pe riod of four weeks after receiving certified copy of this order. 1255 (S/s) 2003 has passed the following order ". . . . . . . . Without entering into the merits of the controversy, the re spondent is directed to dispose of the application of the petitioner in accordance with law within a pe riod of four weeks after receiving certified copy of this order. The observations made above, shall not come in the way of the Labour Commissioner to dispose the ap plication of the petitioner on merit. With the above observa tions, the writ petition is disposed of. There will be no order as to costs. " 6. In compliance of order dated 05-09-2003 passed by this Court, Asstt. Labour Commissioner passed impugned order dated 01-12-2003, which is under challenge in the present petition. 7. Asstt. Labour Commissioner, while disposing the application has framed following three issues for de termination 8. While deciding issue no. 1, the respondent has held that since the Award passed by the Labour Court was upheld by the High Court and the Apex Court has dismissed the appeal filed against the judgment of High Court. Now what is to be imple mented is the Award of Labour Court and the Labour Court has not held that the petitioners were employees of BHEL or the petitioners were to be absorbed in the service by the BHEL, as such, as per Award of Labour Court, the petitioners are entitled for re instatement by the Contractor and in case the Contractor fails to reinstate them, the BHEL should reinstate the petitioners in service. The petitioners are entitled to get the same salary, which they were getting at the time of termination of their services. 9. Heard Sri V. C. Mishra Senior Advocate assisted by Sri V K. Visht, & Sri Lok Pal Singh, learned counsel for the petitioners and Sri VK. Kohli, learned Counsel for the respondents. 10. Grievance of the petitioners is that after the High Court and Honble the Supreme Court have found the petitioners employees of the B. H. E. L. , the award passed by the Labour Court is merged with the judgment of the High Court and the judgment of High Court has merged with the judgment of Supreme Court. But while passing the order dated 01 12-2003 the Assistant Labour Com missioner has declared the petitioners as contract labour and they are di rected to join with the contractors. But while passing the order dated 01 12-2003 the Assistant Labour Com missioner has declared the petitioners as contract labour and they are di rected to join with the contractors. Not only this, during the proceedings before the Assistant Labour Commis sioner, the B. H. E. L. has submitted a letter dated 28-11-2003 stating therein that one Sri K. P Singh Con tractor is ready to re-employ the pe titioners as contract labour which is contrary to the orders of the Honble Supreme Court. 11. It has further submitted by the counsel for the petitioners that there are hundred of posts of Mali lying vacant in regular capacity in the B. H. E. L. But the Assistant Labour Commissioner has disposed of the application of the petitioners stating therein that the B. H. E. L. has rightly decided to re-employ the petitioners as contract labour. The petitioners have contended that the High Court has recorded a finding in W. P no. 2109 of 1997 M/s. Bharat Heavy Electricals Ltd. Vs. State of UP and others as under ". . . . . . At the very outset, it may be mentioned here that the Labour Court has recorded a finding of fact that 14 workmen had, in fact, been engaged for a period more than 240 days in 12 calendar months, and, therefore, the termi nation of their services without complying with the provisions of Section 6-N of the Act was illegal. A finding of fact has further been recorded that the workmen had worked under the control of the petitioner and, therefore, the de vice of employing the contractor, i. e. an intermediary between the workmen and real employer was nothing but an attempt to camou flage the direct relationship of em ployer and employer and em ployee between the petitioner and the workmen. . . . . . " 12. The aforesaid finding was af firmed by Honble Supreme Court, thus the petitioners for all practical purposes were declared as employees of the B. H. E. L and Honble Supreme Court has also confirmed it. . . . . . " 12. The aforesaid finding was af firmed by Honble Supreme Court, thus the petitioners for all practical purposes were declared as employees of the B. H. E. L and Honble Supreme Court has also confirmed it. It has been further submitted that in view of the terms and conditions laid down u/s 25 (v) (a) of Contract Labour Regulation and Abolition Rules 1971, it has been described that in case where the workmen employed by the contractor, perform the same or simi lar kind of work as is done by the workmen directly employed by the principal employer of the establish ment, the wage rates, holidays, hours of work and other conditions of the service of the workmen of the con tractor shall be the same as applica ble to the workmen directly employed by the principal employer of the es tablishment for the same and similar kind of work. 13. On the other had a counter affidavit has been filed by the re spondent no. 2 stating therein that in compliance to the award dated 5-7 1999 the respondent has chosen to employ the petitioners through ton tractor and at their directions Sri K. P. S. Chauhan, contractor has writ ten letter to all the petitioners asking them to report for duty. Thereafter the respondents had also issued a letter dated 13-1-2004 for reporting for duties to Sri K. P. S. Chauhan within 48 hrs. from the date of serv ice of the said notice. 14. It has been further contended that since the award dated 5-7-1996 given by Labour Court, Dehradun has become. final; hence the allega tions have no relevance. The High Court of Allahabad has dismissed the writ petition filed by the respondent no. 2 and Honble Supreme Court has also dismissed the appeal, hence the award has been confirmed. The Honble High Court did not vary the award of Labour Court, Dehradun, hence it is to be implemented, but the petitioners are misinterpreting the matter. The respondent no. 2 has duly complied with the award given by the Labour Court but the petition ers are not accepting the employment through contractor. 5 15. It has been further contended that the award of the Labour Court was not challenged by the petitioners, therefore, they cannot raise any plea against the award. The respondent no. 2 has duly complied with the award given by the Labour Court but the petition ers are not accepting the employment through contractor. 5 15. It has been further contended that the award of the Labour Court was not challenged by the petitioners, therefore, they cannot raise any plea against the award. The principle of merger does not apply because the writ petition and the appeal preferred by the respondent have been dis missed. Neither the High Court, nor the Honble Supreme Court has di rected the respondent no. 2 to em ploy the petitioner directly and the award passed by the Labour Court was not at all altered or varied. The respondent no. 2 has been given a liberty either to employ the petition ers directly or through contractor. It was also denied by the respondent no. 2 that at the time of termination the petitioners were the employees of the BHEL and they are to be rein stated by BHEL. 16. Learned counsel for the pe titioners Sri V. C. Mishra has submit ted that the doctrine of merger will be applicable in the present case and it is the judgment of the Apex Court which is to be executed. In support of his submissions he has placed re liance on the judgment of Apex Court in the case of Kunhayammed and others us. State of Kerala and another reported in 2000 (6) Supreme Court Cases, page 359. 17. Honble Supreme Court in the aforesaid case while explaining Doctrine of merger has held in para 12 as under "the logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same sub ject-matter at a given point of time. When a decree or order passed by an inferior court, tribu nal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its final ity is put in jeopardy. When a decree or order passed by an inferior court, tribu nal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its final ity is put in jeopardy. Once the superior court has disposed of lis before it either way-whether the decree or order under appeal is set aside or modified or simply con firmed, it is the decree or order of the superior court, tribunal or au thority which is the final, binding and operative decree or order wherein merges the decree or or der passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the su perior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view. " 18. In para-27, the Apex Court has held that in case a petition for leave to appeal is dismissed by a non- speaking order it would not at tract the Doctrine of merger but if the order of dismissal is supported by reasons then also the Doctrine of merger would not be attracted be cause the jurisdiction exercised was not an Appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. Still the reasons stated by the Court would attract applicability of Art. 141 of the Constitution, if there is a 6 law declared by the Honble Supreme Court which obviously would be binding on all the Courts and Tribu nals in India and certainly the parties thereto. The Apex Court in para-41 has held that once leave to appeal is granted, any order passed thereafter would be an Appellate order and would attract the applicability of Doc trine of merger. It would not make a difference whether the order is of reversal or of modification or of dis missal affirming the order appealed against. It would also not make any difference If the order is speaking or der or non speaking one. 19. It would not make a difference whether the order is of reversal or of modification or of dis missal affirming the order appealed against. It would also not make any difference If the order is speaking or der or non speaking one. 19. The Apex Court has sum up by giving conclusion in para-44 which reads as under (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before su perior forum and such superior forum modifies, reverses or af firms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior fo rum and it is the letter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second state commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii ). . . The superior jurisdiction should be capable of reversing, modifying or affirming the or der put in issue before it. Un der Article 136 of the Consti tution the Supreme Court may reverse, modify or affirm the judgment-decree or order ap pealed against while exercising its appellate jurisdiction and not while exercising the discre tionary jurisdiction disposing of petition for special leave to appeal. The doctrine or merger can therefore be applied to the former and not to the latter. (iv ). . . . . (v) If the order refusing leave to appeal is a speaking order, i. e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. . . . . (v) If the order refusing leave to appeal is a speaking order, i. e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Sec ondly, other than the declara tion of law, whatever is stated in the order are the findings re corded by the Supreme Court which would bind the parties thereto and also the court, tri bunal or authority in 7 any pro ceedings subsequent thereto way of judicial descriptions the Supreme Court being the Apex Court of the country (vi) Once leave to appeal has been granted and appellate jurisdic tion of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modifica tion or merely affirmation. (vii) 20. I find force in the submis sions of learned counsel for the peti tioners. Against the Award of Labour Court the respondent filed writ peti tion, which was dismissed. Against the dismissal of the writ petition by the High Court, the respondent ap proached Honble Supreme Court and the Apex Court dismissed Civil Appeal no. 2459-2461 of 1999 by its judgment dated 21-07-2003. Since the Apex Court has exercised Appel late jurisdiction and has dismissed the appeal, on merit, after hearing both the parties, the Doctrine of merger would attract. 21. The Honble Apex Court in the present case has recorded find ings that "it is not possible for us to hold that such concurrent findings re corded by the Labour Court and the High Court that the workmen were to be treated as the employees of the appellant are either perverse or based on no evidence or untenable at all. " 2. 2. In view of above findings, the workmen were to be treated as the employees of the appellant. 23. On the other hand, learned counsel for the respondents Sri V. K. Kohli has placed reliance on the judg ment of Apex Court reported in State of Madras vs. Madurai Mills Co. Ltd. ; AIR 1967 Supreme Court, page 681 (V 54 C 146) wherein the Honble Supreme Court in para-6 has held as under ". . . . . . . . Ltd. ; AIR 1967 Supreme Court, page 681 (V 54 C 146) wherein the Honble Supreme Court in para-6 has held as under ". . . . . . . . But the doctrine of merger is not a doctrine of rigid and uni versal application and it cannot be said that wherever there are two orders, one by the inferior Tribu nal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appel late or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the appli cation of the doctrine depends on the 8 nature of the appellate or revisional order in each case and the scope of the statutory provi sions conferring, the appellate or revisional jurisdiction. . . . . . 24. The Apex Court in the case of Kunhagammed and others (Supra) has accussed the aforesaid citation. 25. The respondent cannot take benefit of the authority cited above. As already stated above in the present case, the Apex Court has ex ercised its Appellate jurisdiction by dismissing the appeal after recording findings. 26. Sri V. K. Kohli, learned coun sel for the respondent has further submitted that in any case the Honble Supreme Court has not modified the order of the Labour Court or the High Court and mere observations made in the judgment cannot be looked, on the contrary it is the ratio which has been decided by the Supreme Court is to be looked. I do not find force in the sub mission of learned counsel for re spondent that the observation made in the judgment cannot be looked into for the reasons that in the present case it is not merely an ob servation of the Apex Court but the Apex Court has recorded findings. 27. In the present case, the La bour Court while passing the award had framed certain issues. One of the issues is issue no. 3 to the effect that "whether opposite party no. 1 is not employer of the petitioner?" While deciding the aforesaid issue, the La bour Court has recorded a finding as under 28. 27. In the present case, the La bour Court while passing the award had framed certain issues. One of the issues is issue no. 3 to the effect that "whether opposite party no. 1 is not employer of the petitioner?" While deciding the aforesaid issue, the La bour Court has recorded a finding as under 28. However, in the operative portion of the award, the Labour Court directed the B. H. E. L. to re-em ploy the petitioners as directly through B. H. E. L. or through the con tractor and in the case of failure, the BHEL shall be responsible to rein state the petitioners. 29. The aforesaid award was challenged by the B. H. E. L. before the High Court and the High Court while disposing the writ petition, has re corded its finding as under " There is no dispute about the fact that the respondent workmen were engaged for working as gar deners in the factory promises, campus and residential colony-of the petitioner. Ram Sahai, Head Mali was admittedly employed by the petitioner. It was he, who used to supervise the work of the re spondent nos. 6 to 19. Another employee of the petitioner was Head Mali Sadhu Ram. It was he, who used to maintain the record of attendance of the workmen. It has come in evidence that Sadhu Ram used to keep the record of the attendance of the respondent workmen and that when a dispute arose consequent upon their dis engagement, he destroyed the same by tearing it off at the in stance of one Varshney who was the Manager in the petitioner-es tablishment. If the workmen were, in fact, engaged by independent contractors, the record of their at tendance should have been main tained by them and the control and supervision on the duties per formed by the 14 persons should, in all probability, have been that of the independent contractors. In view of the positive findings of fact recorded by Labour Court that the petitioner had control and supervision over the work and duties to be performed by the re spondents-workmen and that the record of their attendance was be ing maintained by the employees of the petitioner, there can be no escape from the conclusion that the respondent-workmen were un der the direct employment, super vision and control of the peti tioner. Sometimes, the employers, with a view to get over stringent provisions and prescriptions of the labour law, resort to a device to engage the workmen through some intermediary. Such an ar rangement has to be termed as artificial and not real. " 30. The High Court has further held as under " The findings of facts recorded by the labour court cannot be scruti nized , or sifted in this writ petition. The tone and tenor of the employ ment of the respondent-workmen makes it amply clear that they were, for all practical purpose, were the employees of the peti tioner. The petitioner had retained direct control over the work and the duties of the respondent-work men. The attendance of the work men was also recorded by an em ployee of the petitioner. The in volvement of the alleged direct contractors was merely a figura tive. The engagement of the con tractor was sham and not genuine. Therefore, if the fictitious agency, which was brought into existence as a device to camouflage the sta tus of the respondent-workmen, is ignored, they would be treated to be in the direct employment of the petitioner" 0 31. The High Court has also taken note of the fact that it cannot be forgotten that the petty workmen are generally pitted against a mighty employer. The workmen find it diffi cult to ventilate their grievances against all powerful employer. The workmen are, kept out of job to end lessly keep waiting for award and thereafter, resulting in further litiga tion and delay in enforcement of their rights. The management would always keep the workmen at bay by denying them absorption. 32. In the operative portion, the High Court while dismissing the writ petition nos. 2109 of 1997 and 41787 of 1998 disposed of writ peti tion no. 1654 of 1999 and stayed the proceedings against the B. H. E. L. u/s 14-A of the Act provided the B. H. E. L. deposits a sum of Rs. 2,17,000/- with the Deputy Labour Commissioner within a period of one month. 33. Aggrieved with the order of High Court, the petitioner preferred appeals before the Honble Supreme Court which were numbered as 2459 2461 of 1999. These appeals were dismissed after hearing the parties by the Honble Supreme Court vide judgment dated 21st July 2003. 2,17,000/- with the Deputy Labour Commissioner within a period of one month. 33. Aggrieved with the order of High Court, the petitioner preferred appeals before the Honble Supreme Court which were numbered as 2459 2461 of 1999. These appeals were dismissed after hearing the parties by the Honble Supreme Court vide judgment dated 21st July 2003. The Honble Supreme Court has held that the Labour Court on the basis of the evidence concluded that the appel lant was the principal employer. The Honble Supreme Court has also quoted the finding of Labour Court as under "from the statements of Ram Swarup who is Head Mali under Employer no. 1, it appears that though the concerned workers were employed at work by the contractor but he himself used to take work from them in the capac ity of Head Gardener and he also used to look after their work. The contractor used to pay salary only and their attendance were used to be marked in a separate Register by another. Head Gardener Sadhu Ram and the Register was got torn by Manager Shri Varshney so that no proof may remain and after tearing of register, workers were removed. From these, it appears that employer no. 1 had control over the plaintiff workers and they cannot be said to be the workers only of the contractor. It appears that with the object to keep them out of the ambit of UP Industrial Dispute Act, this method was adopted that work was taken from them by the employee of the em ployer and payment should be shown to have been made by the contractor. From the statements of Shri K. PS. Chauhan, contractor, it appears that he still has work con tract in BHEL (Laying of Sever Pipe Line ). From the complaints made by workers in this regard this fact is confirmed. As per the statements of worker Vinod Kumar, before tearing of the At tendance Register, workers had got photocopies of these done by taking these registers from Head Mali which copies have been filed by the worker party in the Court. Not filing the records concerning the attendance of workers by both employer no. 1 and 2 destroying the same and filing of photocopies of the same by the worker party prove that employer no. Not filing the records concerning the attendance of workers by both employer no. 1 and 2 destroying the same and filing of photocopies of the same by the worker party prove that employer no. 1 can also not escape from the liability of illegal termination of services of these workers. Hence, it is decided that the Respondent no. 1 is also the employer of plaintiff workers, though principal employer. " 1 34. The Honble Supreme Court has further held that "thus, consid ering the evidence, the facts and cir cumstances of the case and findings of fact recorded by the Labour Court, the High Court held that the work men were under the direct employ ment, supervision and control of the appellant observing that sometimes, the employers, with a view to get over stringent provisions of the la bour law, resort to engage the work men through some intermediary and such an arrangement has to be termed as artificial. x x x We have no good reason or valid ground to upset the concurrent find ing of fact recorded by the Labour Court as affirmed by the High Court in this regard. x x x This apart, the finding that the re spondents/workmen were the em ployees of the appellant, does not rest merely on the test of control. The other evidence and facts and circum stances of the case were also kept in mind in recording such a finding in cluding a vital fact that the appellant did not produce the records alleging that they were not available which led to drawing adverse inference against them. It is not possible for us to hold that such concurrent findings recorded by the Labour Court and the High Court that the workmen were to be treated as the employees of the appellant are either perverse or based on no evidence or untenable at all. " 35. The Honble Supreme Court has affirmed the findings recorded by the Labour Court as well as the High Court. As discussed above, against the Award of Labour Court, writ pe tition was filed before the High Court by the respondent which was dis missed. Aggrieved by the order of High Court, the respondent ap proached Honble the Supreme Court and the Apex Court has also, in its Appellate jurisdiction, dismissed the appeal. As discussed above, against the Award of Labour Court, writ pe tition was filed before the High Court by the respondent which was dis missed. Aggrieved by the order of High Court, the respondent ap proached Honble the Supreme Court and the Apex Court has also, in its Appellate jurisdiction, dismissed the appeal. Thus, since the Apex Court has exercised its Appellate jurisdic tion and has dismissed the appeal on merit, after recording findings, the judgment of lower Court merges with the judgment of Honble Supreme Court. The Honble Supreme Court has recorded a finding that "it is not possible for us to hold that such con current findings recorded by the Labour Court and the High Court that the workmen were to be treated as the employees of the appellant are ei ther perverse or based on no evi dence or untenable at all. "the afore said findings contained in the order is a declaration of law by the Honble Supreme Court within the meaning of Article 141 of the Constitution of In dia even otherwise whatever is stated in the order are the findings recorded by the Honble Supreme Court which would bind upon the parties thereto and also to the Court, Tribunal or Authorities in any proceedings subse quent thereto by way of judicial dis cipline, the Supreme Court being the Apex Court of the Country. 36. For the reasons stated above, the writ petition is allowed. The im pugned order dated 01-12-2003, passed by the Labour Court is hereby quashed. The respondent no. 2 is di rected to reinstate the petitioners in service directly, in view of the find ings recorded by the High Court, confirmed by the Apex Court. thereto and also to the Court, Tribunal or Authorities in any proceedings subse quent thereto by way of judicial dis cipline, the Supreme Court being the Apex Court of the Country. 36. For the reasons stated above, the writ petition is allowed. The im pugned order dated 01-12-2003, passed by the Labour Court is hereby quashed. The respondent no. 2 is di rected to reinstate the petitioners in service directly, in view of the find ings recorded by the High Court, confirmed by the Apex Court. .