Judgment:
Ahmadi, J.
1. This petition under Article 227 of the Constitution of India is directed against the order of the Labour Court, Ahmedabad, dated January 30, 1985 dismissing the petitioner's application preferred under Sub-section (2) of Section 33C of the Industrial Disputes Act, 1947 (hereinafter called the I.D. Act'). Briefly stated, the facts giving rise to this petition are as follows:
2. The Board of Directors of Ashok Mills Ltd., a Company incorporated under the Companies Act, passed a resolution dated May 17, 1950 to sell a certain parcel of its land to the three incorporated companies, namely, Arvind Mills Ltd., Arun Mills Ltd., and Ashok Mills Ltd., for the construction of a joint Hospital for the employees of the said three Mill Companies. The possession of the said parcel of land was delivered in 1953 for carrying out the above objective and a formal deed of conveyance was executed later on December 28, 1953 whereby the said parcel of land was sold to the said three Mill Companies for Rs. 12,584/- only. Under the said conveyance the three Mill Companies became the co-owners of the said land, the Arvind Mills Ltd., having eight annas (50%) share in a rupee while the other two Mill Companies each having four annas (25%) share in a rupee. A copy of the said deed of conveyance is produced at Annexure 'B' to the petition. A joint Hospital known as 'The Arvind, Ashok, Arun Mills Hospital (hereinafter referred to as 'the Hospital') came to be constructed on this land from the funds provided by the said three Mill Companies in proportion to their shares in the land under the conveyance deed.
3. The employees of the Hospital, through the petitioner-Union, preferred an application under Sub-section (2) of Section 33C of the Act alleging that the second respondent-Hospital was an undertaking of Ashok Mills Ltd. and was managed and run by the said Mill Company. The employees of the said Mill Company and its sister concerns, namely Arvind Mills Ltd., and Arun Mills Ltd., are given treatment in the said Hospital and hence the Hospital staff for all intents and purposes belongs to the establishment of Ashok Mills Ltd., and is entitled to salary and allowances and other benefits so admissible to similar employees of the said Mill Company. The application was supported by two annexures. In Annexure 'A' to the application particulars regarding date of entry in service and the salary received by each employee were set out while in Annexure 'B' the dues calculated from the date of entry of each employee up to April 1980 were set out and it was contended that since the claim put forward by the Hospital employees was in respect of the difference in wages between the wage actually paid and the wages to which they were legally entitled i.e. money claim. An application under Sub-section (2) of Section 33C of the Act was maintainable and the Labour Court had jurisdiction to decide the same and to direct the Mill Company to pay the said difference or such amount as it considered reasonable.
4. The Ashok Mills Ltd., contested the application mainly on the ground that the Labour Court had no jurisdiction to entertain the same and in any case such an application was not maintainable under Sub-section (2) of Section 33C, at best the proper provision to apply would be Sub-section (1) of that Section. The application would not be maintainable even under the said provision as the Hospital employees were not the employees of Ashok Mills and the relationship of employer-workman did not exist either under the provisions of the I.D. Act or the Bombay Industrial Relations Act (hereinafter called 'the B.I.R. Act'). Besides the Hospital employees had no existing right which could be put to execution under Section 33C of the I.D. Act. It was next contended that a separate application ought to have been preferred by each employee under Rule 67 of the Industrial Disputes (Gujarat) Rules, 1966 and a composite application on behalf of the employees of the Hospital was not maintainable. It was contended that the Hospital was a separate and distinct entity and was not an establishment or undertaking of the Ashok Mill Company and its activities had nothing to do with the textile undertaking and hence the entire application was totally misconceived. It was lastly contended that the Hospital was not under the management or control of the Ashok Mill Company and it was not correct to say that only the employees of the three Mill Companies were entitled to receive treatment at the said Hospital, any employee who was insured under the Employees' State Insurance Act was entitled to receive treatment at the said Hospital. The Ashok Mill Company, therefore, contended that as the Hospital staff did not belong to the said Mill Company, the entire application was mis-conceived and there was no question of paying the difference in wages and dearness allowance set out in Annexures 'A' and 'B' to the application.
5. The second respondent, the Hospital Management, also raised more or less similar grounds. It contended that the Labour Court had no jurisdiction, that the claim put forward was time-barred, that such an application was not maintainable under Sub-section (2)of Section 33C of the I.D. Act and that separate applications should have been filed under Rule 67 of the Industrial Disputes (Gujarat) Rules, 1966. On merits it was contended that the Hospital was not governed by the provisions of the B.I.R. Act since it was not notified under Section 2(4) of the said Act that it was not an undertaking of Ashok Mills Ltd., nor was it managed or controlled by the said Mill Company and that the employees of the Hospital were paid wages, dearness allowance, etc. under the terms of the settlements dated 26-9-1956 and 18-8-1962 (copies produced) arrived at between the Gujarat Hospitals Staff Union and the Hospital Management under the provisions of the I.D. Act or in accordance with the rates fixed under the notification dated August 1, 1979 issued under the Minimum Wages Act, 1936 made applicable to the Hospitals, whichever was higher. It was, therefore, contended that the application was thoroughly misconceived and deserved to be dismissed.
6. Oral as well as documentary evidence was tendered before the Labour Court. On behalf of the workmen, Keshabhai was examined at Ex. 13. He stated that he was working as a ward boy in the Hospital since last about twelve years on a salary of Rs. 280/- per month. According to him, his presence was marked in the muster maintained by the Ashok Mills Ltd., and he was paid his wages by the said Mill Company. He deposed that his signatures were obtained on printed salary slips of the said Mill Company but on learning about the filing of the application in question, the printed name of the Mill Company was scored out and instead a rubber stamp of A.A.A. Hospital was affixed thereon. He further stated that initially the Hospital was started for the benefit of the workmen of the three Mill Companies but later E.S.I. patients were also given treatment at the said Hospital. Lastly he deposed that the Hospital Superintendent Shri Kothari received all the benefits available to the workmen of Ashok Mills Ltd., but the other members of the Hospital staff are denied similar benefits. Under cross-examination he admitted that the Hospital was situated outside the precincts of the Ashok Mills Ltd., and all the medicines etc., required for the Hospital were purchased by the Hospital Superintendent. Except this witness, no other witness was examined on behalf of the employees.
7. On behalf of the opponents two witnesses: (1) Piyush Shah, clerk of the Hospital and (2) Sanatkumar Purshottam Dave, a member of the Managing Committee of the Hospital, came to be examined at Exs. 17 and 18 respectively. Sanatkumar deposed that the Hospital was and is run and managed by a Committee comprising one director from each Mill Company and the Managers of the said Mills. He stated that after the land was formally purchased in 1953, the Hospital started functioning in 1953-54 under the name of Arvind, Ashok and Arun Mills Hospital. No employee of any of the three Mills was transferred to the Hospital but a fresh staff was recruited for the Hospital. Dr. Kothari, the Resident Medical Officer of the Hospital is, according to the witness, the appointing and disciplinary authority while policy decisions are taken by the Hospital Committee. As far as fixation and payment of salary to the Hospital staff is concerned, he stated that the same was governed by settlements arrived at between the Union representing the employees and the Hospital management or the minimum rate of wages fixed under the Minimum Wages Act from time to time whichever was higher. As regards the pay slips he stated that it is possible that the stationery of Ashok Mills Ltd., may have been used at times for want of Hospital stationery. Lastly he stated that the main income of the Hospital was from E.S.I. patients and others and if there was any deficit the same was met by the three Mill Companies in proportion to their shares. Audited accounts of the Hospital have also been produced to show its income and expenditure. The other witness Piyush Shan, a clerk of the Hospital stated that he was selected by the Hospital Committee members Shri Dave and Shri Kothari for appointment about three years ago and it was his duty to prepare the pay slips of the staff members. According to him the presence was noted in the muster by the matron Sulochanaben on the basis whereof he prepared the pay slips. He deposed that the pay was fixed as per the settlements of 1956 and 1962. He further stated that dearness allowance was paid as and when the dearness allowance became payable to textile workers every six months. In cross-examination he admitted that initially someone from the Ashok Mills Ltd., used to come with the register for noting the presence but that practice was discontinued. He also admitted that he went to Ashok Mills Ltd., to receive his salary along with the other employees of the Hospital. Lastly he admitted that the food for indoor patients was supplied from the canteen of Ashok Mills Ltd. He produced the statement of income and expenditure of the Hospital and the balance-sheet to show that the funds required to run the Hospital came from the said three Mill Companies. He lastly stated that the Hospital was registered as an establishment with the Municipal authorities.
8. On the basis of the above evidence it was strongly argued before the Labour Court that the employees of the Hospital were the employees of Ashok Mills Ltd., and were, therefore, entitled to salary and allowances admissible to similar employees of the said Mill Company. In support of this contention reliance was placed on the pay slips Exs. 22, 23 and 24 of February, April and July 1980, respectively, executed on the stationery of Ashok Mills Ltd., with the name of the Mill Company scored out in the last slip, Ex. 24. Reliance was also placed on the fact that some employees of the Mill Company rendered part-time service in the Hospital. The fact that the Hospital was started for the benefit of the employees of the three Mill Companies and the expenses were shared by the said Mill Companies was also emphasised to buttress the argument that in substance the staff of the Hospital belonged to Ashok Mills Ltd.
9. This submission was countered by the contesting opponents by pointing out that the Hospital was an independent entity and was registered as such with the Municipal authority under the provisions of the Bombay Shops and Establishments Act, 1948. The Hospital was managed by a Committee comprising directors and managers of the three Mill Companies and the staff was engaged by the said Committee or the Superintendent of the Hospital and the Mill Companies had nothing to do with their employment. Stating the fact that certain employees of Ashok Mills Ltd., namely, a clerk and an accountant, were employed on part-time basis, it was explained that they rendered service after their regular office hours in the Mill Company. Such part-time employees had to be employed because of the limited nature of work in the Hospital, to employ full time employees would have been a wasteful indulgence and an uneconomical proposition. As regards the use of printed pay slips of Ashok Mills Ltd., it was stated that these slips were used as the Hospital slips were not available and by inadvertence the name of the Mill Company was not scored out from Exs. 22 and 23 while it was scored out from Ex. 24. The allegation that it was scored out from Ex. 24 because it had by then become known that the application in question was filed was countered by producing extracts from pay register of 1971 and presence cards of 1977 which bore the name of the Hospital. It was also stressed that such an application under Sub-section (2) of Section 33C of the Act was not maintainable and the Labour Court was not competent to deal it as it in substance required adjudication of an industrial dispute, namely, whether the Ashok Mills Ltd., was the employer of the Hospital employees. Counsel for the employees pointed that there was no prayer in the application for determination of the relationship of employer and employee between the said two contesting parties and, therefore, the contention was not valid.
10. The Labour Court, on appreciation of the oral as well as the documentary evidence tendered in the case and having regard to the submission made at the bar, came to the conclusion that although the three Mill Companies were under no statutory obligation to start a Hospital and starting of a Hospital was not a part of the ordinary business of the said Mill Companies, they had done so as a benevolent measure so that the employees of the three Mill Companies may receive medical aid, and merely because the names of the Mills were prefixed to the name of the Hospital it would not make the Hospital a part of any of the three Mill Companies. It, therefore, held that the Hospital was a distinct and separate entity registered as such under the provisions of the Bombay Shops and Establishments Act and was managed by a specially constituted committee which supervised the recruitment of the Hospital staff and exercised disciplinary jurisdiction also. It also found that besides the employees of the three Mill Companies, others, such as E.S.I. patients, and those entitled to treatment under the Family Planning Schemes, also received treatment at the said Hospital. It was, therefore, held that the services rendered at the Hospital had nothing to do with the three textile undertakings in question. The use of the stationery (pay slips) or the part-time employment of the clerk and accountant of the said Mill by the Hospital or receipt of meals from the canteen of the Mill Company on payment for the Hospital patients was not inconsistent with the stand taken by the hospital. As regards the payment of salary, the Labour Court held that the same was governed under the two settlements arrived at under the provisions of the I.D. Act between the Hospital management and the Employees' Union in 1962 and after application of the Minimum Wages Act it was provided that the employees should be paid as per the settlement or the rate fixed under the Minimum Wages Act, whichever was higher. As regards the payment of dearness allowance also the Labour Court held that as the Hospital was not a part of the textile industry, it was not governed by the Award for Textile Workers but they were entitled to dearness allowance as per the settlements applicable to them. Lastly, on the question of maintainability of the application under Sub-section (2) of Section 33C of the I.D. Act, the Labour Court opined that a major industrial dispute was raised by the employees which could not be adjudicated by it under the said sub-sec. It negatived the contention that the application is maintainable as (i) the question of employer- employee relationship between Ashok Mills Ltd., and the Hospital staff arises only incidentally and (ii) the main question was one of the mere computation of monetary benefits to which the employees were entitled. In this view that the Labour Court took it dismissed the application by the impugned order which has given rise to this petition.
11. The findings of fact recorded by the Labour Court are unassailable. Ordinarily in a petition under Article 227 of the Constitution, such findings of fact are accepted as final unless it is shown that any particular finding or all of them is/are perverse or against the weight of evidence on record. We have briefly set out the nature of evidence on which the findings are based and we are not in a position to say that any finding is inconsistent with the evidence on record. Such a contention with regard to any specific finding is not made before us. We will, therefore, proceed to dispose of this petition on the facts found by the Labour Court.
12. It may also be noted that Ashok Mills Ltd., decided by the resolution of May 27, 1950 to sell a parcel of its land for the construction of a Hospital. Subsequently the decision was formalised by the sale-deed, dated December 28, 1953, and the said land was sold to the three Mill Companies for running a joint Hospital. Only after the land was formally conveyed to the three Mill Companies, that the Hospital came into existence, management where of was entrusted to a specially constituted committee. If it was a part of the activity of the textile undertaking it would not nave been registered as an independent establishment under the Bombay Shops and Establishments Act, 1948 after the same was made applicable to hospitals by Notification dated June 16, 1982,
13. The principal contention which has been urged before us by Mr. Mishra bears on the question of jurisdiction. He argued that the Labour Court has failed to exercise jurisdiction vested in it on an erroneous reading of Sub-section (2) of Section 33C of the Act. He submitted that the petitioners had approached the Labour Court with a grievance that although they were the employees of Ashok Mills Ltd., they were not paid salary and dearness allowance admissible to similar employees of the Mill Company and had, therefore, sought the difference in wages and dearness allowance from their employer Ashok Mills Ltd., as detailed in Annexure 'B' to the application. He, therefore, argued that the Labour Court had dismissed the application on an erroneous reading of the averments as well as Sub-section (2) of Section 33C of the I.D. Act. According to him the question of jurisdiction must be decided on a true reading of the averments in the application regardless of the defence raised by the contesting opponents. He stated that if the averments in the application are taken at their face value it will be obvious that the application was maintainable under Sub-section (2) of Section 33C of the Act and the dispute raised by the management in their written statement cannot oust the jurisdiction of the Labour Court. In other words, according to Mr. Mishra the question of jurisdiction must be resolved on a correct reading of the averments in the application and the language of Sub-section (2) of Section 33C of the Act. He submitted that the Labour Court had committed an error in concluding that the petitioners had raised a vital industrial dispute which could not be entertained under Sub-section (2) of Section 33C of the Act
14. On the other hand Mr. Patel submitted that the petitioners were paid salary and allowances as per the settlements arrived at in 1956 and 1962 between the Employees' Union and the Hospital Management, the terms whereof are binding on the parties by virtue of Section 18 of the Act. After the application of the Minimum Wages Act, the employees were paid wages under the settlement or as fixed by the said statute, whichever was higher. The claim made by the employees in the application was, therefore, clearly de hors the settlement arrived at under Section 2(p) read with Section 18 of the Act and, therefore, the same could not be entertained under Sub-section (2) of Section 33C of the I.D. Act. He further submitted that the claim was based on the premise that the Hospital employees were employees of Ashok Mills Ltd. and were, therefore, entitled to wages and allowance fixed under the Award applicable to textile workers and not under the Settlements of 1956 and 1962. He, therefore, submitted that the Labour Court was, therefore, right in thinking that unless the principal question whether the Hospital employees are employees of Ashok Mills Ltd., was resolved, there was no question of the employees being entitled to wages and allowances under the Award governing the textile workers. He emphasised that the Hospital staff was paid wages under the 1956 and 1962 settlements since the time the settlements came into operation and the employees have throughout received wages ana allowances thereunder without a demur but the dispute has belatedly been raised after a new Union-Samasta Gujarat Karmachari Mahamandal came into being and wanted to impress upon the employees that it could secure higher salary and allowances for them. In the end, Mr. Patel submitted that even though the Hospital was jointly started by the three Mill Companies, the employees had picked Ashok Mills Ltd., for relief presumably on account of its proximity, Hospital building being just outside the compound of the Ashok Mills Ltd. In short, he supported the view taken by the Labour Court and prayed for the dismissal of this petition.
15. As this application purports to be under Sub-section (2) of Section 33C of the I.D. Act, it would be proper to notice the width and amplitude of the said provision. The section provides the remedy to an individual worker to recover any money or money value of any benefit from the employer to which he 'is entitled'. Sub-section (1) of this Section provides that if any money 'is due' to a workman from an employer under a settlement or an award or under Chapter V-A or V-B, the workman or his authorised agent, assignee or heirs, as the case may be, may make an application to the appropriate Government for the recovery thereof. Sub-section (2) deals with cases where a workman is entitled to receive any money or any benefit capable of being monetary computation from the employer. If any question arises as to the amount due or as to the amount at which such benefit should be computed, that question may be decided by the specified Labour Court. Since the provision is intended to supply a speedy remedy, the sub-section requires that the question may be decided within three months. The use of the expressions 'money is due' in Sub-section (1) and 'workman is entitled' in Sub-section (2) are indicative of the fact that the legislature intended to provide a speedy remedy for the enforcement of existing rights; that is why it is said that the provision is in the nature of execution proceedings.
16. Now, under Sub-section (1) where 'money is due' to a workman from an employer under a settlement or an award or under Chapter V-A or V-B an application may be made to the appropriate Government for the recovery thereof. On the appropriate Government being satisfied that me money is due it may issue a certificate for the amount due to the Collector for recovering the same as arrears of land revenue. Under Sub-section (2) where any workman 'is entitled' to receive from his employer any money or benefit which is capable of being computed in terms of money and if any question arises as to the amount due or as to the amount at which such benefit should be computed, then the question may be decided by the specified Labour Court. The first part Sub-section (1), therefore deals with cases where there is a dispute as to the amount due and the satisfaction of the appropriate Government is limited to its verification only whereas the second part, Sub-section (2) comes into play 'if any question arises as to the amount of money due or as to the amount at which such benefit should be computed'. These words clearly indicate a dispute between the workman and the employer as to the amount due or as to the amount at which the benefit should be computed which needs determination by an appropriate forum, namely, specified Labour Court. After the decision of the Labour Court is made the amount determined has to be recovered in the same manner as provided by Sub-section (1). This is what emerges on a plain reading of Sub-section (1) and (2) of Section 33C of the I.D. Act.
17. Sub-section (1) contemplates an application for the recovery of the money due to the workman from his employer whereas Sub-section (2) speaks of the workman being entitled to: (i) any money and/or (ii) money equivalent of any benefit from an employer. It is, therefore, obvious that Sub-section (2) is wider in scope than Sub-section (1) but if money due is recoverable under Sub-section (1) why provide for the same under Sub-section (2)? That is because Sub-section (2) comes into play if any question arises as to the amount due or as to the amount at which the benefit should be computed. The expression 'money-due' in the context of Sub-section (1) means a specified or ascertained amount under a settlement, award, or Chapter V-A or V-B of the I.D. Act. In so far as the satisfaction of the appropriate Government is concerned, it relates to a mere verification of the claim not requiring any adjudication but if the claim is disputed and the same is required to be determined, the matter has to go to the specified Labour Court for adjudication. Take a case where money is due under a settlement or an award of the Labour Court and a question arises which clause of the settlement or award would govern or apply in the facts and circumstances of the case. If it involves interpretation of two clauses of the settlement or award and if the dispute is bona fide, the proper forum to determine the clause under which the amount must be calculated would be the specified Labour Court. Instances can be multiplied to show the circumstances under which such money claims have to be adjudicated and determined by the Labour Court. Besides, there may be money claims arising de hors any Settlement, Award or Chapter V-A or V-B of the I.D. Act which could be dealt with under Sub-section (2) only. Where a workman is entitled to a specified sum of money from his employer, not under any Settlement or Award or the provisions of Chapter V-A and V-B, such a claim would be governed by Sub-section (2) of Section 33C only.
18. In Punjab National Bank Ltd. v. Kharbanda (K.L.), 1962 (1) LLJ 234, the workman had filed an application under Sub-section (2) of Section 33C claiming that he was entitled to the benefit of fitment as per the proviso to Clause (7) of Para 292 of the Sastri Award. The Bank on the other hand contended that under the Sastri Award there is only one scale for clerical staff and hence the petitioner could claim the special allowance under Para 164 of the Award besides his fitment in the highest of the present scale for clerical staff prevailing in the bank. The workman further contended that since he was a 'workman' under the I.D. Act, he was entitled to the benefit of 'point-to-point adjustment' in the supervisors' scale. The bank contended that the application was not maintainable as Sub-section (2) of Section 33C could be invoked only in respect of non-monetary benefits and not in respect of monetary benefits. It may here be mentioned that Section 33-C(2), as it then stood, was limited to the entitlement to receive from the employer any benefit which is capable of being computed in terms of money and did not include money claims. Examining the bank's contention as regards the maintainability of the application under Sub-section (2) of Section 33C, Wanchoo, J. speaking for the Division Bench observed as under:
'.....If we compare Sub-section (1) with Sub-section (2) of this Section, it will appear that Sub-section (1) applies to cases where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A and that contemplates that the amount is already computed or calculated or at any rate there can be no dispute about the computation or calculation while Sub-section (2) applies to cases where though the monetary benefit has been conferred on a workman under an award, it has not been calculated or computed in the award itself, and there is dispute as to its calculation or computation. It cannot therefore be said looking to the words used in Sub-section (2) that it only applies to cases of non-monetary benefit which has to be converted in terms of money. It appears to us that it can also apply to monetary benefits to which a workman may be entitled which have not been calculated or computed, may, for example, in an award about their calculation or computation there is dispute between the workman and the employer'.
Proceeding further it was observed:
'It is clear therefore that Section 33C is a provision in the nature of execution and where the amount to be executed is worked out (for example in an award) or where it may be worked out without any dispute, Section 33-C(1) will apply. But where the amount due to a workman is not stated in the award itself and there is a dispute as to its calculation, Sub-section (2) will apply and the workman would be entitled to apply thereunder to have the amount computed provided he is entitled to a benefit, whether monetary or non- monetary, which is capable of being computed in terms of money'.
19. In Central Bank of India Ltd and Ors. v. Rajagopalan (P.S.) nad Ors. 1963 (2) LJ 89, the workman contended that besides attending to routine duties as clerk he had been operating the adding machine provided for use in the clearing department of the branch during the stated period and, therefore, he was entitled to the payment of special allowance at Rs. 10/- per month under paragraph 164(6)(1) of the Sastri Award. Similar claims were put forward by certain other workmen under Sub-section (2) of Section 33C of the I.D. Act. The bank disputed the claims and raised a preliminary objection against the competence of the application on the plea that under the said provision only non-monetary benefits which were capable of computation could be claimed. It was further contended that Sub-section (2) can be invoked by a workman who is entitled to receive from the employer the specified benefit but the right of the workman to receive the same should have been admitted and need not be a matter of dispute between the parties.
It was argued that if there is a dispute about the workman's right to claim the benefit, that has to be adjudicated upon not under Sub-section (2) but by other appropriate proceeding permissible under the I.D. Act. Repelling this contention, Gajendragadkar, J. who spoke for the Court observed as under:
'In our opinion, on a fair and reasonable construction of Sub-section (2) of Section 33C it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money, but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise'.
Dealing with the next question, whether the Labour Court can interpret the Award or Settlement on which the right is based in exercise of jurisdiction under Sub-section (2) of Section 33C in view of the express provision contained in Section 36A, the Court observed as under:
'We have already noticed that Section 36A has also been added by the Amending Act 36 of 1956 along with Section 33C, and the appellant's argument is that the legislature introduced the two sections together and thereby indicated that questions of interpretation fall within Section 36A and, therefore, outside Section 33-C(2). There is no force in this contention. Section 36A merely provides for the interpretation of any provision of an award or settlement where any difficulty or doubt arises as to the said interpretation. Generally, this power is invoked when the employer and his employees are not agreed as to the interpretation of any award or settlement, and the appropriate Government is satisfied that a defect or doubt has arisen in regard to any provision in the award or settlement. Sometimes, cases may arise where the awards or settlements are obscure, ambiguous or otherwise present difficulty in construction. It is in such cases that Section 36A can be invoked by the parties by moving the appropriate Government to make the necessary reference under it. Experience showed that where awards or settlements were defective in the manner just indicated, there was no remedy available to the parties to have their doubts or difficulties received and that remedy is now provided by Section 36A. But the scope of Section 36A is different from the scope of Section 33-C(2), because Section 36-A is not concerned with the implementation of execution of the award at all, whereas that is the sole purpose of Section 33-C(2), whereas Section 33-C(2) deals with cases of implementation of individual rights of workmen falling under its provisions. Section 36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workman and the employer.....'
20. In Bombay Gas Company Ltd v. Gopal Bhiva and Ors. 1963 (2) LLJ 608, sixteen workmen of the Company filed applications under Sub-section (2) of Section 33C of the Act alleging that under the award of the Industrial Tribunal they were entitled to a certain benefit which was required to be computed in terms of money. They moved the Labour Court for computing the same and for directing the Company to make payment. The demand was resisted by the Company on several preliminary grounds which formed the subject-matter of several preliminary issues. The principal contentions raised by the Company were that the applications were not maintainable under Sub-section (2) of Section 33C and that the said applications were barred by res-judicata. Dealing with the first contention the Supreme Court pointed out that the proceedings contemplated by Sub-section (2) of Section 33C were analogous to execution proceedings and the Labour Court while computing the benefit in terms of money is, in such cases, in the position of an executing Court like the executing Court in execution proceedings is governed by the Code of Civil Procedure, the Labour Court would be competent to interpret the award on which the claim is based and it would also be open to it to consider the plea that the award sought to be implemented was a nullity. The Supreme Court affirmed the view taken in the Central Bank's case (supra).
21. A Division Bench of this Court in Chimanlal B. Joshi v. Nagrashna (M.N.). Second Labour Court, Ahmedabad and Ors. 1965 (1) LLJ 315, was dealing with a case where the workman had filed an application under Sub-section (2) of Section 33C claiming arrears of salary from certain respondents on the plea that he was employed as an honorary secretary by respondent No. 4 and was not paid his salary from 1st March, 1958 to 3rd September, 1959. His further contention was that the purported termination of his service by respondent No. 2 who was not his employer with effect from 28th March, 1958 was a nullity and did not disturb his status as an employee of respondent No. 4 and hence he was entitled to the arrears of salary. The employer questioned the jurisdiction of the Labour Court. The Labour Court dismissed the application firstly on the ground that the workman claimed his benefit of salary under a contract and not under any settlement or an award and, therefore, it had no jurisdiction to deal with the matter and secondly because the application raised a question regarding the legality and propriety of the discharge order and such a question could not be determined in an application under Section 33-C(2) of the I.D. Act. The High Court in exercise of jurisdiction under Article 227 of the Constitution allowed the writ petition of the workman holding that so far as first ground is concerned, the issue stands covered by the decision of the Supreme Court in Central Bank's case (supra). On the second point after referring to the pleadings, it was pointed out that the workman had nowhere raised any question regarding the legality and propriety of any discharge order in his application and in substance his applications was that he was an employee of respondent Nos. 3 and 4 and that his salary was in arrears. It was, however, found that the workman had made a reference to the letter of March 28, 1958 signed by one Fakirchand on behalf of respondent No. 2 wherein it was mentioned that his services had been terminated. The Court took the view that having regard to the nature of pleadings and the settled law, the Labour Court had jurisdiction to decide the preliminary question as to whether the petitioner was or was not a workman in the employment of respondent Nos. 3 and 4 during the relevant period. Quashing the Labour Court's order, the proceedings were remanded with a direction that the Labour Court shall decide the application in accordance with law. This decision thereof points out that there could be money claims arising de hors any Settlement or Award or Chapter V-A or V-B of the I.D. Act. It is clear from the above case law that if any money or computation of any benefit in terms of money is claimed be on the basis of an existing right and the existence of such right is disputed by the employer, the Labour Court would be competent in proceedings under Section 33-C(2) to decide whether or not the said right exists as incidental to the claim preferred by the workman. It also emerges that a claim under Section 33C would not be rejected by the Labour Court merely because the same is not admitted in the written statement by the employer.
22. In Ramakrishna Ramnath v. State of Maharashtra and Ors. (1975) 47 FJR 313, a Bidi Factory was closed by the employer after the Government of Bombay fixed the minimum wages payable in the Bidi making industry to the employees under Section 5(2) read with Section 5(1)(b) of the Minimum Wages Act, 1948 with effect from 11-6-1958. After the notification in that behalf was issued by the State Government, the employer purporting to act in exercise of powers under Clause 11 of the Standing Orders, put up a notice dated June 24, 1958 the material part whereof stated that the closure of the Bidi making business of the firm will continue as long as the notification remains in force and is not withdrawn. The factory of the petitioner remained closed temporarily from July 1, 1958 to August 10, 1958. After it reopened, all the employees were taken back on work. One of the employees, respondent No. 3, thereafter filed an application to the Labour Court at Nagpur under Sub-section (2) of Section 33C of the I.D. Act alleging that she was in the employment of the petitioner as a Bidi-binder and her average daily earning was Rs. 1-69. She claimed that she was entitled to the benefit of Rs. 1-69 on account of retrenchment and one month's notice pay in lieu of one month's notice. According to her, the closure of the factory from July 1, 1958 resulted in the retrenchment of the workers including herself who had put in seven years' continuous service. She contended that the benefit claimed by her was capable of being computed in terms of money and the Labour Court should determine the amount payable to her. The petitioner- employer in his reply denied the claim and disputed the fact that respondent No. 3 was employed as a Bidi-binder but it was contended that she was binding bidis on contract basis as a piece-rated worker and that there was no relationship of master and servant between the parties. It was, therefore, contended that the Labour Court had no jurisdiction under Section 33-C(2) to entertain the application as there was a serious dispute between the parties as to whether there was any retrenchment at all and even the amount of compensation claimable was disputed. Dealing with this contention, Chandurkar, J, who spoke for the Division Bench referred to the decision of the Supreme Court in the case of Punjab National Bank (supra), and the Central Bank (supra) and thereafter pointed out:
'We have referred to these decisions to point out that it is now settled law that mere denial of the right of an employee does not oust the jurisdiction of the Labour Court and the Labour Court has been held entitled to make an enquiry into the right which is claimed by the employee'.
To put it differently, the law does not confer a veto power on the employer so far as the jurisdiction of the Labour Court under Section 33-C(2) is concerned. If it is held that once the employer denies the existence of an existing right, the Labour Court would lose its jurisdiction that would confer veto power on the employer. What is important is that the Court must examine the averments in the claim application and if the averments disclose that the application is based on an existing right, the Labour Court would be competent to decide the question regarding the existence of such a right if the same is denied by the employer, in such case it would not be open to the Labour Court to reject the application for want of jurisdiction merely because the employer has denied the existence of such a right. (Also see Yad Ram v. Labour Court, Delhi, 1974(2) LLJ 306 and Market Committee Amritsar v. Presiding Officer, Labour Court, Amritsar, (1981) 14 L.I.C. 473 (P. & H.).
23. Mr. Mishra, the learned Advocate for the petitioners, therefore, argued that the Labour Court was not justified in rejecting the application on the ground that a major industrial dispute arose between the parties since the relationship of employer-employee was disputed. He further submitted that the Labour Court was in error in taking the view that the question of status of the applicants was not an incidental question. It is, however, necessary to realise that while these observations are made in paragraphs 23 and 24 of the judgment, the Labour Court has on an appreciation of the evidence tendered by the parties come to a positive conclusion that the existing right averred in the application was not proved. This conclusion is recorded in paragraph 26 of its judgment. The discussion in this behalf is to be found in paragraphs 13 to 20 of the judgment. On a reading of the entire judgment of the Labour Court it becomes clear that the Labour Court took the view that a substantial industrial dispute was raised in the proceeding as employer-employee relationship was not admitted and the question did not arise incidentally, but at the same time went it into the factual aspect whether or not the existing right on which the application was based was proved from the evidence tendered in the proceeding by the contending parties. The Labour Court came to a definite conclusion that the applicants had failed to prove the existing right on which the application was founded. This would show that the Labour Court, while holding that the application was not maintainable under Section 33-C(2) had at the same time decided the basic question regarding the existence or otherwise of the existing right. It was contended on behalf of the management that the application was preferred by the Samasta Gujarat Karmachari Mahamandal which was admittedly not a representative Union within the meaning of Section 3(33) of the B.I.R. Act which applied since the textile industry is governed under the provisions of the B.I.R. Act. Section 27A of the said Act clearly provides that no employee shall be allowed to appear or act in any proceeding under the provisions of the Act except through the representative of employees save as provided in Sections 32, 33 and 33A of the Act. Section 28(1) contemplates election of representatives of employees where there is no representative Union. Section 30 lays down the order of preference for appearing and acting as representatives of employees in an industry and a representative Union for such industry has the first preference. It is also clear from the scheme of the said statute that even if an individual employee has been permitted to appear under Section 32 or Section 33 thereof at the initial stage, as soon as a representative Union files its appearance, the carriage of proceedings passes on to the representative Union. A combined reading or these provisions leaves no room for doubt that the legislature desired to prevent the possibility of exploitation of employees by clothing the representative Union with the sole right to speak and act on their behalf in any proceeding under the said law. Section 33A merely indicates the persons who may appear in proceedings in which there is dispute between employers and employees. That Section clearly has no application in the present case. It was, therefore, argued on behalf of the management that the petitioner-Union not being a representative Union was not entitled to initiate proceedings under the BIR Act and, therefore, with a view to circumvent the said provision it initiated proceedings under Sub-section (2) of Section 33C of the I.D. Act.
24. From the above discussion it is clear that an application based on an existing right would be maintainable under Section 33-C(2) if any money or any right which can be computed in terms of money is claimed against the employer. The jurisdiction of the Labour Court will not be ousted merely because the employer disputes the existence of such a right, If the status of the employee is disputed and if that question has to be decided for granting the right sought, the Labour Court would be bound to decide the same. For example, if a workman claims money or money value of a benefit and the status of the workman is disputed, the Labour Court would decide the question as incidentaly arising. However, in the present case it is clear from the facts laid before the Court that there was no existing right. In fact the true facts were suppressed. At no point of time was the hospital staff governed by the standardisation award. In fact they were throughout governed under the settlements of 1956 and 1962 and the rates fixed under the Minimum Wages Act, whichever was higher. Yet these facts were deliberately suppressed and the application was filed as if the employees were governed by the standardisation award and were not paid accordingly. There is force in the contention that this was done to circumvent the provisions of the BIR Act under which the petitioner could not have raised an industrial dispute not being a representative Union. We, therefore, agree that by invoking Section 33-C(2) the petitioner-Union tried to raise an industrial dispute which it could not have raised under the B.I.R. Act. We, therefore, agree with the Labour Court that the application was not maintainable under Section 33-C(2) as the underlying idea was not to enforce an existing right but to raise a fresh industrial dispute. In this view we are fortified by a recent decision in P.K. Singh v. Presiding Officer (1988) 2 LLJ 363. Of course since the Labour Court has decided on the existence of the right, the question of jurisdiction of the Labour Court under Section 33-C(2) actually recedes in the background.
25. Now, if we go strictly by the averments in the pleadings, it becomes obvious that the petitioner-Union had approached the Labour Court with a plea that even though the Hospital was an undertaking of Ashok Mills Ltd., and the employees working in the Hospital were its employees and were governed by the standardisation award applicable to textile workers, they were not paid wages, dearness allowance, etc., under the said award but were paid much less and, therefore, they were entitled to the difference in wages and dearness allowance as calculated in Annexure 'B' to the application under Section 33C of the I.D. Act. It is also their say that the Hospital was constructed and is being run for the benefit of the employees of Ashok Mills Ltd., and sister-concern Arvind Mills Ltd. and Arun Mills Ltd. Now these averments taken at their face value show that according to the employees: (i) they are employees of Ashok Mills Ltd. (ii) they are entitled to wages and allowances as per the standardisation award applicable to textile workers, (iii) they have been paid wages and allowances at a lower rate, and (iv) they are entitled to the difference as calculated in Annexure 'B' to the application. It is, therefore, obvious that the claim is a money claim based on the standardisation award. There is no indication in the claim application that there is any dispute regarding the interpretation of the said award or any clause thereof. In fact the grievance is that even though the employees are entitled to payment under the said award they are not paid accordingly and are, therefore, entitled to the difference in wages and allowances as calculated in Annexure 'B'. It is purely an arithmetical proposition and not a legal one. Therefore, on the submission of the Counsel for the petitioners that for the purpose of jurisdiction the Court must go by the averments in the claim application alone and the jurisdiction cannot be ousted on the basis of the defence raised, we must hold that the application would rightly fell within Sub-section (1) of Section 33C of the I.D. Act.
26. Now assuming we are wrong in our conclusion in this behalf, we may examine whether the Labour Court was justified on facts in rejecting the application. On facts the Labour Court has found that the Hospital was established in 1953-54 on a parcel of land covered under the deed of December 28, 1953, that the Hospital Management was entrusted to a specially constituted committee, that the Ashok Mills Ltd., as well as the other two Mill Companies were under no statutory obligation to run the Hospital, that the recruitment of the staff for the Hospital was done by the Hospital authorities, that there was no transfer of staff from the Mills to the Hospital, that the Hospital was a separate entity and was registered as such under the Bombay Shops and Establishments Act, that besides the employees of the three Mill Companies, other employees covered under the E.S.I. Act as well as the Family Planning Schemes of the State Government were receiving treatment at the said Hospital, that the expenses of the Hospital were met from the fees received from the employees covered under the E.S.I. Act as well as patients covered under the Family Planning Schemes and the deficit, if any, was made good by the three Mill Companies in the proportion of their shares in the land under the deed of conveyance and lastly the salary and allowances paid to the staff of the Hospital were regulated under the settlements of 1956 and 1962 and latter under the provisions of the Minimum Wages Act if the minimum wages fixed was higher than that fixed under the relevant settlement. The Labour Court found as a fact that at no point of time the Hospital employees were paid salary under the standardisation award applicable to workers. In the background of the facts held proved by the Labour Court, the Labour Court came to the conclusion that there was no relationship of employer and employee between Ashok Mills Ltd., and the members of the Hospital staff. The Labour Court, therefore, came to the conclusion that the applicants had no existing right and, therefore, the application under Section 33-C(2) was not maintainable.
27. Mr. Mishra, the learned Advocate for the petitioner, invited our attention to several decisions which go to show that a worker employed in a canteen run either directly or through a society by the Mill Company or gardeners employed by the Mill Company to look after the gardens belonging to the Mill Company are workers of the Textile Mill within the meaning of Section 2(s) of the I.D. Act and are entitled to all the benefits available under the standardised award. Four decisions : (1)1951 (1) LLJ 682 (K.H. Dave v. Bhalakia Mills Co. Ltd.), (2)1953 (2) LLJ 647 (Ahmedabad Mfg. & Calico Printing Co. Ltd. v. Their Workmen), (3) 1956 (2) LLJ 179 (Shakra Chuntha and Ors. v. Maneklal Harilal Mills Co. Ltd. and Ors.), (4) 1973 (2) LLJ 130 (S.C.) (Saraspur Mill Company Ltd. v. Ramanlal Chimanlal) were cited in support of the proposition that workers employed in the canteen run directly by the Mill Company or through a Co-operative Society would fall within the definition of 'employees' as defined by Section 3(13) of the B.I.R. Act. In this connection it is necessary to bear in mind the fact that Section 46 of the Factories Act, 1948 casts a statutory obligation on the Mill Companies to run and maintain a canteen or canteens if the Labour force is in excess of 250 workers. It will thus be seen that the law casts an 'obligation on the management of a specified factory to provide and maintain a canteen or canteens for the use of its workers. There is no such obligation under any statute, at least our attention has not been drawn to any, requiring the Mill Companies to provide and maintain a Hospital for its employees. In so far as gardeners are concerned, they stand on a different footing as gardens are part and parcel of the establishment of the Mill Company. In Ramtahel Ramanand v. Ahmedabad Mfg. & Calico Printing Co. Ltd. 1968 (2) LLJ 46, a Division Bench of Court held that gardeners employed by the Textile Mills to look after garden attached to the bungalows of the officers of the Mills are also employees under Section 3(13) of the B.I.R. Act and an application under Section 78(4) of the said Act is maintainable. Of course after so holding, the case was remanded to the Lower Court as it was contended that the gardens not being situated within the precincts of the Mill Company could not be treated as a part of the establishment and hence the gardeners working in those gardens were not employees of the Mill Company. This case was carried in appeal to the Supreme Court and the decision of the Supreme Court is recorded in Ahmedabad Mfg. & Calico Printing Co. Ltd. v. Ramtahel Ramanand, 1972 (2) LLJ 165 (S.C.). The Supreme Court upheld the ratio of this Court and refused to interfere with the decision. One more case cited in this connection is of Usharani Datia v. State Industrial Court, 1985 (3)SCC 148 wherein employees of a clinic set up by the Government of India at Bhilai for the welfare of the employees of the Bhilai Steel Plant were held to be employees of the Bhilai Steel Plant. In that case the clinic was set up solely as a welfare measure for the employees of Bhilai Steel Plant and the entire expenditure was met by the Government of India by 100% grant-in-aid. In the facts of that case the Supreme Court held that the clinic was a branch or department of the Bhilai Steel Plant and its employees were employees of the said plant and were entitled to be absorbed as such. This decision therefore turns on the special facts of that case.
28. In the present case we have been taken through the evidence recorded by the Labour Court. We have perused the evidence and we are not inclined to think that the conclusions reached by the Labour Court are in any way inconsistent with the evidence or perverse. On the facts found proved by the Labour Court it is evident that since the inception of the Hospital in 1953-54 the Hospital is treated as a separate entity and the salary and allowances of the Hospital staff have never been governed under the standardisation award, on the contrary there have been separate settlements in 1956 and 1962 between the Hospital management and the Gujarat Hospital Staff Union. Admittedly hitherto the salary and allowances were paid to the Hospital staff under the said two settlements, a fact which has not been disclosed in the claim application. Copies of these settlements were produced on the record of the case and it was not disputed before us that the Hospital staff has throughout been governed under the said two settlements. It is also established that the Hospital staff was recruited not by the Mill management but by the Superintendent of the Hospital or the Managing Committee of the Hospital. It is also clearly established that after the provisions of the Minimum Wages Act became applicable to members of the Hospital staff, the wages were paid under the notification issued in that behalf by the State Government if the wages payable under the settlement fell short of the minimum wages. Reliance was placed on the fact that one of the clerks of Ashok Mills did certain work of the Hospital as a part-time employee but that in our opinion cannot make the hospital a part and parcel of Ashok Mill Ltd. Similarly, use of some stationery of Ashok Mills for want of Hospital stationery cannot make any difference. In order to be entitled to the benefit under the standardisation award, it is necessary for the members of the Hospital staff to prove that the Hospital is a part and parcel of Ashok Mills and the members of the Hospital staff are employees of the said Mill Company. It is also not understood why the members of the Hospital staff have chosen to contend that they are employees of Ashok Mills Ltd. when admittedly the Hospital serves the employees of all the three Mill Companies. It seems that Ashok Mills Ltd., has been chosen merely because of its proximity to the Hospital. It is also clear from the deed of conveyance dated December 23, 1953 that the larger share is that of Arvind Mills Ltd. and not Ashok Mills Ltd. There is, therefore, substance in the allegation that after the petitioner-Union came into existence it raised the controversy under Section 33-C(2) of the I.D. Act to assert and justify its existence as it could not have initiated any move under the B.I.R. Act since it was not a representative Union. Besides even if it is assumed that the activity of running the Hospital was started by Ashok Mills Ltd. as a benevolent measure (since there was no statutory obligation to run a fullfledged Hospital), that by itself will not entitle the workmen to the benefits under the standardisation award unless it is further shown that it is a part and parcel of the manufacturing activity of the industry. There is nothing in law which prevents an industry to undertake a distinct and independent benevolent activity which would benefit its employees as well as others. Such a philanthropic activity which has nothing to do with the manufacturing apparatus or the manufacturing activity of the Mill Company can never be described as a part and parcel of the manufactory. We are, therefore, of the opinion that on merits also the Labour Court has correctly evaluated the evidence on record and has rightly come to the conclusion that the applicants have failed to prove the existing right pleaded in their application. Therefore, even if the existence of the right can be gone into as incidentally arising, the Labour Court's conclusion is unassailable. In the circumstances, in any view of the matter, the application was not entertainable under Section 33-C(2) of the I.D. Act.
29. In the result, we see no merit in this petition and reject the same. The rule will stand discharged but in the facts and circumstances of this case we make no order as to costs.