B.S. Chauhan, J.
1. The instant writ petition has been filed challenging the order dated 27.4.1993, contained in Annexure. 18 to the petition, by which the Labour Court allowed the application under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred as the I.D. Act) and re-fixed the salary of the respondent workman as in 1986 and 1988 and directed the petitioner to pay the arrears according. By the said impugned order, some amount of gratuity and retrenchment allowance have, also, been directed to be paid.
2. The facts and circumstances giving rise to this case are that respondent-workman had been working with petitioner with effect from 18.9.1968. A voluntary retirement scheme was floated and respondent-workman opted for it and as a consequence his services came to an end in view of the Agreement/Settlement dated 3.12.1988 contained in Annexure. 17 to this petition. The said Settlement provided for the workmen opting for voluntary retirement, retrenchment compensation on their complete service and payment of gratuity and making payment of the said amount prior to their retirement. The third clause of the said agreement was that after retirement, the workmen shall not raise any dispute whatsoever before any Court. In addition to three clauses, above referred, to the Settlement, made it clear that fixation/re-fixation of salary had not been made in 1986 and 1988.
3. After retirement, the full retrenchment allowance and gratuity had not been paid to the respondent workmen and he filed an application under Section 33C(2) of the I.D. Act before the Labour Court on 24.4.1990, (Annexure. 2), in which in addition to the reliefs for gratuity and retrenchment compensation, workman also sought the direction for re-fixation of salary in 1986 and again in 1988 and claimed the arrears thereof for the period he remained in service. Petitioner raised preliminary objection before the Labour Court the said application was not maintainable so far as the question of re-fixation and award of consequential benefit thereon was concerned. The Labour Court, vide its order dated 27.4.1993 (Annexure. 18), allowed the said application and directed the petitioner to re-fix his salary in 1986 and 1988 and pay him the arrears. Hence this petition.
4. Heard Mr. B.C. Bhansali, learned Counsel for petitioner and Mr. P.R. Mehta, learned Counsel for the respondent-workman and perused the record.
5. Sri Bhansali has vociferously submitted that the impugned order is a nullity to the extent of issuing direction for fixing the revised pay scale as the Labour Court had no competence to issue such a direction in exercise of its jurisdiction under the provisions of Section 33C(2) of the I.D. Act.
6. In Central Bank of India Ltd. v. P.S. Rojgopalan : (1963)IILLJ89SC , the Constitution Bench of Supreme Court observed that the scope of Sub-section (2) of Section 33C of the I.D. Act is much wider than Sub-section (1) as the words 'of limitation' contained in Sub-section (1) did not find place in Sub-section (2). It is, also, possible that claims not based on Settlement/Award or the provisions of Chapter V-A of the Act way, also, be competent under Sub-section (2) and that illustrates its wider scope. The policy of the Legislature for enacting the provisions of Section 33C is to provide a 'speedy remedy to the individual workman to enforce or execute his existing rights' and it would not be reasonable to exclude from the scope of this Section cases of existing rights which are sought to be implemented by individual workman. Like Executing Court has a right to interpret the decree at the time of its execution, in appropriate cases it is open to the Labour Court to interpret the award or settlement on which the workman's rights rest.
7. In Bombay Gas Company Ltd. v. Gopal Bhiva and Ors. : (1963)IILLJ608SC , it was held that Labour Court, in exercise of its power under Section 33C(2) of Act would be competent to interpret the award, on the basis of which the claim has been made and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. The proceedings in Section 33C(2) are analogous to execution proceedings and the Labour Court, which is called-upon to compute, in terms of money, the benefit, is in a position of an executing Court. The Industrial Tribunals dealing with disputes referred to them under Section 1(1)(d) of the Act are Tribunals with a limited jurisdiction as they cannot travel out-side the terms of the reference and deal with matters not included in the reference, subject, of course, to incidental matters which fall within their jurisdiction.
8. What is incidental and ancillary was considered in Sri Ambica Mills Company Ltd. v. S.B. Bhatt : (1961)ILLJ1SC and the Court held that the question should be 'intimately and integrally connected' with the problem but in determining the scope of incidental question care must be taken to see that under the guise of deciding incidental matters, the limited jurisdiction is not unreasonably or unduly extended.
9. In Punjab National Bank v. K.L. Kharbanda : (1962)ILLJ234SC , it was held that the benefit referred to in Section 33C(2) is not confined to non-monetary benefits which could be computed in terms of money but it concerns with all sorts of benefits. It applies when benefits have to be computed or calculated and there is a dispute as to the calculation or computation. The Court had to examine the benefits given under the Shastri Award, which provided for fixation of pay of clerks and the issue involved was whether persons employed in banks, known by other nomenclature such as Supervisors/Accounts Clerks or Accounts Incharge, can be extended the benefit of the Shastri Award.
10. A Constitution Bench of the Hon'ble Supreme Court in Kay's Construction Company Ltd. v. State of Uttar Pradesh : (1965)IILLJ429SC , held that the contrast in two sub-sections between 'money due' and reckoning benefits in terms of money, before it becomes 'money due' shows that the simple calculation of arithmetic would not fall in elaborate procedure provided under Sub-section (2). the enquiry under Sub-section (1) made by the appropriate Government is not of a kind of enquiries under Section (2) but it is for the satisfaction of the appropriate Government and it amounts to merely a verification of claim to money and not determination in terms of money of the value of a benefit which is required under Sub-section (2).
11. Another Constitution Bench of the Hon'ble Supreme Court, in Sawatram Ramprasad Mills Company Ltd. v. Baliram Ukandaji : (1966)ILLJ41SC , observed that Section 33C does not provide for an issue not pre-determined. The Court was dealing with an issue of compensation for lay-off and held that as it was money due, it can be recovered under Section 33C(1) and other statue will not operate for the over-riding character of this Act as provided under the provisions of Section 25J.
12. In Chief Mining Engineer, East India Coal Company Ltd. v. Rameshwar : (1968)ILLJ6SC , the Court held that proceedings under Section 33C(2) are analogous to execution proceedings and the Labour Court is called-upon to compute in terms of money, the benefits claimed by the workman and in such cases the Labour Court is in a position of executing Court and such a right must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the case of and in relation to the relationship between an individual workman and his employer.
13. In U.P. Electricity Company v. R.K. Shukla : (1969)IILLJ728SC , the Apex Court observed as under:
Section 33C(2) is wider than Section 33C(1).... Where, however, the right to retrenchment compensation, which is the foundation of the claim, is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon on a reference, it would be straining the language of Section 33C(2) to hold that the question whether there had been a retrenchment, may be decided by the Labour Court. The power of the Labour Court is to compute the compensation claimed to be payable to the workman on the footing that there has been retrenchment of the workman. Where retrenchment is conceded and the only matter in dispute is that by virtue of Section 25FF, no liability to pay compensation has arisen, the Labour Court will be competent to decide the question. In such a case the question is one of the computation and not of determination of the condition precedent to the accrual of the liability. Where, however, the dispute is whether workman has been retrenched and computation of the amount is subsidiary or incidental the Labour Court will have no authority to trespass upon the power of the Tribunal, with which it is statutorily invested.
14. In R.B. Bansilal Abirchand Mills Company Pvt. Ltd. v. The Labour Court, : (1972)ILLJ231SC , a (nearly Constitution) Bench of the Hon'ble Supreme Court observed that where Workman pleads a case of lays-off and management pleads a case of closure and the workman succeeds in substantiating his averments by adducing evidence and it is shown that the factory is still running, the denial or dispute raised by employer would not oust the jurisdiction of the Labour Court under Section 33C(2) of the I.D. Act. The Court held as under:
The Labour Court's jurisdiction would not be ousted by a mere plea denying the workman's claim to the compensation of the benefit in terms of money; the Labour Court had to go into the question and determine, whether on the facts, it had jurisdiction to make the computation. It would not, however, give its Jurisdiction by a wrong decision on the jurisdictional plea.
15. Similarly, in National Buildings Construction Corporation Ltd. v. Pritam Singh Gill : [1973]1SCR40 , the issue for adjudication was whether a workman, who had been discharged, can file an application under Section 33C(2) for recovery of the arrears of salary as it may not be an existing liability; particularly in a case where the discharge is not in issue. The Court held that Section 33C(2) must be so construed 'as to take within its fold a workman who was employed during the period, in respect of which he claims relief, even though he is no longer an employee at the time of application.
16. In Central Inland Water Transport Corporation Ltd. v. Workman and Ors. : [1975]1SCR153 , the issue arose as to whether the transferee of an undertaking is the successor of an earlier establishment, the transferor? The Court held that determination of such an issue involves consideration on several factors and such as investigation would be clearly out-side the 'speedy individual remedy' contemplated by Section 33C(2) as it deals with a 'benefit demonstrably existing'. Such matter fall within the ambit of Section 1(1) of the Act and cannot be regarded as incidental or ancillary to the computation under Section 33C(2) of the Act.
17. In M/s. Punjab Beverages Pvt. Ltd. v. Suresh Chandra : (1978)IILLJ1SC , the Court held that application under Section 33C(2) lies only after the Tribunal has adjudicated on the complaint under Section 33A or on a reference under Section 10 and under the provisions of Section 33C(2) the question; whether the order of discharge, passed by employer, was justified or not, cannot be determined. The provisions come into operation if in such a case the order of discharge is set-aside and order or reinstatement is passed by the Labour Court in exercise of its power under Section 10 and it is not open to the workman to maintain an application under Section 33C(2) that the order of discharge was void for some reason and the discharged workman can be treated to be in continuous service and he was entitled for the wage etc.
18. In P.K. Singh v. Presiding Officer : (1988)IILLJ363SC , it was held that a claim under Section 33C(2) can maintained only if it is based on pre-adjudication made on reference under Section 10. The controversy involved therein was that the workman appointed Grade-A Fitter claimed that they were entitled for the salary of Grade-B Fitter, which was as promotional post, on the principle of 'equal pay for equal work.' The Court held that such an application is not maintainable as it would amount to re-classification of a workman and the matter can be decided only in reference under Section 10 of the I.D. Act or before some other competent Forum.
19. In Municipal Corporation of Delhi v. Ganesh Rajak and Anr. : (1995)ILLJ395SC , the Apex Court has held that while entertaining an application under Section 33C(2), the Labour Court cannot adjudicate upon the dispute of entitlement or basis of claim of workman. It can only interpret the award or settlement on which the claim is based as its jurisdiction is like that of an executing Court. In such case, the workmen, who were daily-rated/casual workers, claimed the wages at the rate as the regular workers and the Court held that the issue had neither been settled by adjudication nor it has been recognised by the employer and in absence of such pre-condition, the stage for computation of that benefit could not reach.
20. Similarly, in Nilpur Tea Estate v. State of Assam and Ors. : (1996)1SCC60 , the Hon'ble Supreme Court was dealing with a case where a workman had been discharged and his matter had been referred to the Labour Court and he was reinstated in pursuance of the Labour Court's award and was subsequently discharged. He filed an application under Section 33C(2) claiming back wages. The Court held that without challenging the subsequent discharge and its adjudication in a reference under Section 10 of the Act, the cannot claim back wages for the period beyond the unchallenged order of termination.
21. Similarly, the Apex Court, in Fabriel Gasusa v. Labour Commissioner and Ors. : AIR1997SC954 , has observed that Section (SIC)3-C deals with the pre-adjudicated claim or the applications should be based on some award/settlement or such right should have been recognised right by the employer/management.
22. In Union of India v. Gurbachan Singh and Anr. : (1997)IILLJ827SC , it was held that application under Section 33C(2) is not maintainable if it requires the adjudication of a fresh claim.
23. Similarly, in Chief Superintendent, Government Live-stock Farm, Hissar v. Ramesh Kumar, : (1997)11SCC363 , the Court held that the remedy under Section 33C(2) of the I.D., Act is available only when there is no dispute about entitlement of the workman. The provisions cannot be invoked in case where the entitlement itself is in dispute. In the said case the workman was claiming equal pay for euqal work. The Court held that the proper course for the employee was to have his entitlement to regular scale determined by a competent Court or Tribunal and in the event on non-payment of the amount payable to him as per his entitlement under such determination, he would be justified in invoking the remedy under Section 33C(2) of the Act.
24. Therefore, if we draw the inference of all the law referred to above, one may reach the conclusion that it is necessary to bear in mind to vital difference between a pre-existing right or benefit on one hand and the right or benefit which is considered just and fair, on the other hand. The former fall within the admit of Section 33C(2) while the later does not. Therefore, for resorting to the provisions of Section 33C(2), the claimant has to fulfil the condition precedent and he must point out some pre-existing right or benefit which he seeks to enforce and if he seeks some new right or benefit in the condition of service, neither acquired nor granted nor conferred by the Court, he can seek the remedy by making a reference under Section 10 but the provisions of Section 33C(2) will not be applicable. If the entitlement depends upon adjudication of the right for the first time, such an adjudication cannot come within the purview of this Section, the word 'benefit' is of a very wide amplitude and it take in its ambit all relevant and incidental benefits which a workman would be entitled to but it should not require an adjudication by making a reference under Section 10 of the Act. Such a remedy must be resorted to being cheaper, efficacious, speedy and summary remedy for recovery of money or any benefit which is capable of being computed in terms of money, by a workman from his employer. Enquiry contemplated in Section 33C(2) is regarding the existence of a right and such an inquiry is only incidental to the main determination which is to be made by Labour Court.
25. In the instant case the agreement between the workman and management does not stipulate anything about the re-fixation of pay scale. It simply stated that the pay scale had not been revised in 1986 and 1988. In the agreement there were only provisions for gratuity and retrenchment compensation and not for re-fixation of pay scales. Whether the respondent-workman was entitled for revision of pay scale or not, had never been adjudicated upon by any competent forum, nor such a right had been recognised by the employer. Therefore, the claim of workman to the extent of revision of pay scale was not based on any existing right.
26. Thus, it is a clear case where the Labour Court has exceeded its jurisdiction and to that extent, the direction issued amounts to a nullity.
27. In view of the above, the impugned Award of the Labour Court dated 27.4.1993 (Annexure. 18) is set-aside to the extent it directs the petitioner to re-fix the salary or the workman in 1986 and 1988 and pay the arrears. However, workman is at liberty to approach the appropriate forum for the said relief, if he is entitled to persue such a remedy under the law. In the facts and circumstances of the case, the parties are left to bear their own costs.