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. 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

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