Lokeshwar Singh Panta, J.
1. This writ petition has been filed by Cement Corporation of India, Rajban, District Sirmour, Himachal Pradesh through Shri R. Vishwanathan, its General Manager under Articles 226/227 of the Constitution of India seeking the following reliefs:
(i) The impugned order (Annexure P-2) dated November 24, 1995 may please be quashed.
(ii) That the records of the respondent-Court may kindly be summoned and examined for the just decision of this writ petition;
(iii) Any other writ, direction or order, deemed fit in the facts and circumstances of the case, be issued; and
(iv) Petitioner be awarded the costs of thewrit petition against the respondents.
2. The petitioner-Cement Corporation of India (for short CCI) is a Government Company and it has established its factory for manufacturing of cement at Rajban, District Sirmour, The CCI has employed a number of regular workmen for running its factory. The CCI engaged Moti Chand, respondent No. 3 here as the contractor for doing odd jobs, purely of temporary nature not connected with the manufacturing process of cement. The CCI is only registered with Registering Officer and Assistant Labour Commissioner (Central) under Certificate No. 46(R-2) 87-ACH-1 dated April 20, 1988 as per Sub-section (2) of Section 7 of Contract Labour (Regulation and Abolition) Act, 1970. Khatri Ram (respondent No. 2 herein) was employed as workman by respondent No. 3 Contractor for doing the odd jobs including shifting of firewood, shifting of refractory, cleaning of spilled material, cleaning of floors, shifting of grinding media, jungle cutting and cleaning of drainage etc.
3. The workman filed an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short 'the Act') claiming that he was a contract labour employed by the CCI since 1980 and on the basis of the Award, recorded under Section 10-A of the Act by the Arbitrators and published in the Central Government Gazette in the year 1983, he is entitled to benefits/ wages at par with the regular employees of the CCI. According to the petitioner- CCI, under the orders of the Presiding Officer, Labour Court, Himachal Pradesh, the workman filed his claim petition later on claiming a sum of Rs. 2,73,741.
4. In its reply filed before the Labour Court, the Management stated that the workman was never employed by the CCI in its employment as he was the employee of the Contractor and it was the Contractor, who was liable to pay wages to the workman. It was also stated that in accordance with the provisions of Contract Labour (Regulation and Abolition) Act, 1970 the Management is only responsible to supervise the payment to the labour by the Contractor. Further it is submitted that the amount claimed by the workman was not within limitation and that the appropriate Government is the Central Government, who has not specified the Labour Court as required under Section 33-C(2) of 'the Act' and therefore, the application was not maintainable because the Labour Court has the jurisdiction only to compute the amount due on the basis of the admitted entitlement and in the present case, there was a dispute in respect of the determination of the entitlement which could not be decided by the Labour Court unless the reference is made by the competent Government under Section 10 of 'the Act'.
5. Before the Labour Court, the parties went to trial and led their evidence in support of their claim and counter-claim. The workman has claimed in the application under Section 33-C(2) of the Act, filed before the Labour Court for determination of his entitlement of wages at the rate of Rs. 100 per day w. e.f. May 1, 1981 at par with the regular Mazdoors engaged by the CCI in its factory at Rajban. The case of the workman was that he was engaged as Mazdoor working in the 'Kiln' section of CCI at Rajban since 1981 in the process of production of cement which is a most integral part contributing to its existence. His employment as Mazdoor was directly under the supervision, control and custody of the Management of CCI. He has been transacting the same business in the 'Kiln' section with the same apparatus, tools and implements as done or handled by the regular-Mazdoors of the CCI who are getting double wages as compared to the wages given to him. The workman also contended that he has wrongly been shown an employee working under a Contractor and his engagement has allegedly been done by the Management of the CCI in connivance with the so called Contractor to escape the rigours of the regulations under the Factories Act as also in terms of avoiding financial and welfare benefits to him according to the law and rules in force. The claim for the recovery of wages as Mazdoor from the management was based on the wage Award passed by the Arbitrators dated July 14, 1983 whereunder the contract labour was abolished.
6. The claim of the workman was allowed by the Labour Court holding him the employee of the CCI as his presence was marked by the 'Kiln' supervisor who is an employee of CCI. The Labour Court also observed that the contract labour was abolished by the Award delivered by the First Wage Board in 1960. The Arbitrator duly appointed to settle the issue and controversies between the Cement Manufacturers Association and their workmen issued directions, recommendations and observations in its para 225 of the First Wage Board extracted by the Labour Court in para 16 -of the Award. The Second Wage Board in 1983 has also relied upon the directions, recommendations and observations made by the First Wage Board. The contract labour system stands abolished except in loading and unloading and packing of cement and coal under the directions and observations of both the Wage Boards. The Labour Court by Award dated November 24, 1995 (Annexure P-2) directed the CCI to make all differential payment of wages, i. e, the difference between the total amount paid per month and the amount to which the workman was entitled to as a regular workman coupled with all other financial benefits, allowances, bonus and similar other perks as may be admissible from the date of publication of the Award dated, July 20, 1983 within 30 days from the date of the order, failing which the Management shall have to pay interest on this amount at 12% per annum from the date of institution of the reference application, i.e. January 12, 1993.
7. The petitioner-CCI has challenged the Award of the Labour Court in this writ petition, inter alia, on the grounds that the evidence of the Management led before the Presiding Officer of the Labour Court has not been properly appreciated to establish that the workman was the employee of the CCI and it is proved on record that the workman was the employee of the Contractor engaged for doing odd jobs of temporary nature not connected with the manufacture of cement, as such there is no question of his being covered by the Award on the basis of which the workman laid his claim and the Award is erroneous and unsustainable to the extent of allowing the entitlement of the workman to the same wages being drawn by the regular employees of the Management of the CCI as it was beyond the scope of the provisions of Section 33-C(2) of 'the Act'.
8. In opposition to the writ petition, the workman filed reply. He stated that the CCI has been violating the Wage Award and the Labour Court has found on the basis of the record that the workman is working in the 'Kiln' section and his job is connected with the manufacturing of cement, which is being performed by the regular/departmental Mazdoors in the 'Kiln' section of the CCI. According to workman as per the Wage Award the contract labour can be kept for loading and unloading section only and not at all in the other sections of the CCI. The workman also stated that the CCI is paying full wages and perks at par with the regular employees of the Corporation to the contract labour working m loading and unloading section, but to him, who is working in 'Kiln' section and entitled to the departmental wages and other perks as per the Wage Award, the CCI has denied the same benefits to him. It is stated that, reference under Section 10 of the Act in this case was not warranted and the workman is entitled to file application under Section 33-C(2) of the Act as the CCI is the Principal Employer of the workman, whereas the contractor is only via-media. The workman has sought to support the Award of the Labour Court impugned in this petition.
9. In rejoinder to the reply of the workman, the CCI has reasserted and reaffirmed its averments made in the writ petition. It is admitted that the Award made by the Arbitrator under Section 10-A of 'the Act' is applicable to the employees of the CCI, but it is stated that the issue of equal pay for equal work raised by the workman cannot be determined by the Labour Court in a claim application under Section 33-C(2) of 'the Act' as the workman has not claimed any specific amount of wages nor the wages amount was determined in the Wage Award made by the Arbitrators.
10. I have heard the learned counsel for the parties. The primary issue that arises for my consideration in this writ petition is as under:
'Whether the Labour Court has the jurisdiction to grant the relief to the workman under Section 33-C(2) of the Act?'
11. To appreciate the contentions of the learned counsel for the parties, the provisions of 'the Act' relevant for the decision of the issue is Section 33-C of 'the Act'.
Section 33-C of the Act reads as under:-
'Recovery of money due from an employer-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 or Chapter V-B), the workman himself or any other person authorised by him in writing in this behalf, or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:
Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:
Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.
(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made in this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government (within a period-not exceeding three months):
(Provided that where the Presiding Officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing extend such period by such further period as he may think fit)
(3) * * * *
(4) * * * *
(5) * * * *'
12. The State of Himachal Pradesh framed the Industrial Disputes Rules, 1974. Rule 66 deals with filing of application for recovery of dues. The said rule is reproduced as under:
'(1) Where any money is due from an employer to a workman or a group of workmen under a settlement or an award or under the provisions of Chapter V-A, the workman or the group of workmen, as the case may be, may apply in Form 'M' for the recovery of the money due:
Provided that in the case of a person authorised in writing by the workman, or in the case of the death of the workman, the assignee or the heir of the deceased workman, the application shall be made in Form 'N'.(2) Where any workman or a group of workmen is entitled to receive from the employer any money, or any benefit which is capable of being computed in terms of money, the workman or the group of workmen, as the case may be, may apply to the specified Labour Court in Form 'C' for the determination of the amount due or as the case may be, the amount at which such benefit should be computed.'
13. In the case on hand the Labour Court who recorded the impugned Award is a specified Labour Court for adjudication of the Industrial Disputes. It is no doubt true that the workman had not filed the application as prescribed in Form 'O' appended with the Rules, but on that technical plea the application could not be rejected on that ground if the Labour Court has jurisdiction to entertain the application of the workman under Section 33-C(2) of 'the Act'.
14. On careful consideration of the entire material on record, in my view the Award of the Labour Court in proceedings under Section 33-C(2) of 'the Act' cannot sustain as there was no earlier determination or adjudication of the claim or entitlement of the workman to get the benefit of equal wages paid by the CCI to its regular employee engaged in the Unit nor there was any determination in both the Wage Boards Awards nor there was any pre-existing earlier determination in regard to the employment of the workman directly by the CCI. On bare reading of the above extracted provisions of Section 33-C(2) of 'the Act' it is clear that the right to the benefit which is sought to be computed under this Section must be 'an existing one, i.e. to say already adjudicated upon or provided for'. The proceedings contemplated by Section 33-C(2) are analogous to execution proceedings and the Labour Court like the Executing Court in the execution proceeding governed by the Code of Civil Procedure, would be competent to interpret the Award on which the claim is based.
15. The scope of Section 33-C(2) of the Act has been dealt with and considered by the Supreme Court of India in State Bank of India v. Ram Chandra Dubey and Ors., 2001 (1) SCC 73 : 2000-II-LLJ-1660. The principles enunciated in the earlier decisions in Central inland Water Transport Corporation Ltd. v. Workmen, AIR 1975 SC 1639 : 1974 (4) SCC 696 : 1975-II-LLJ-l 17; Municipal Corporation of Delhi v. Ganesh Razak, 1995 (1) SCC 235 :: 1995-I-LJLJ-395; Hindustan Tin Works (P) Ltd. v. Employees, AIR 1979 SC 75 : 1979 (2) SCC 80 : 1978-II-LLJ-474, Central Bank of India Ltd, v. P.'S. Rajagopalan, AIR 1964 SC 743 : 1967-II-LLJ-89; Kasilingamv. P.S.G. College of Technology, AIR 1981 SC 789 : 1981 (1) SCC 405 : 1981-I-LLJ-358 and M.D., U.P. Warehousing Corporation v. Vijay Narayan Vajpayee, AIR 1980 SC 840 : 1980 (3) SCC 459 : 1980-II-LLJ-222 have been summed up: as follows 2000- II-LLJ-1660 at p. 1662:
'5. ...... Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of computation in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre- existing right. The 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 is vital. The former falls within the jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not....'
16. In Municipal Corporation of Delhi v. Ganesh Razak and Ors. (supra) the Supreme Court considering the ratio of its earlier decisions held 1995-I-LLJ-395 (headnote):
'Where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no/earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation of enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of Executing Court's power to interpret a decree for the purpose of its execution. The power of the Labour Court under Section 33- C(2) extends to interpretation of the Award or settlement on which the workmen's right rests'.
17. In this matter decided by the Supreme Court, the claim of the respondent-workmen who were all daily rated/casual workers to be paid wages at the same rate as the regular worker had been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of 'equal pay for equal work' being disputed, without an adjudication of that dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The Court proceeded to hold that the mere fact that some other workmen are alleged to have made a similar claim by filing writ petition under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. The respondents claim is not based on a prior adjudication made in the writ petition filed by some other workmen upholding a similar claim which could be relied on as an adjudication ensuring to the benefit of those respondents as well.
18. As noticed above, in the case on hand, the entitlement of the workman to receive equal wages for equal work, done by the regular employees of the CCI has not been earlier adjudicated nor the CCI has accepted that the workman was employed by it in its Unit at Rajban. There being no earlier adjudication or recognition of the entitlement of the workman by the CCI in its employment, therefore, the claim or the entitlement of the workman to certain benefit claimed in the application before the Labour Court is, therefore, clearly outside] the scope of a proceeding under Section 33-C(2) of 'the Act'. The Labour Court has no jurisdiction to first decide the workman's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section, 33-C(2) of 'the Act'. The ratio of the judgments of the Supreme Court in Municipal Corporation of Delhi v. Ganesh Razak and Ors. (supra) and State Bank of India v. Ram Chandra Dubey and Ors. (supra), in my view squarely and entirely apply to the facts and circumstances of the present case. Thus, it is held that the, Labour Court has no jurisdiction to grant reliefs to the workman claimed in the application filed under Section 33-C(2) of the Act. The learned counsel for the workman has placed reliance in a judgment of the Supreme Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli and Ors., AIR 1969 SC 1335 : 1969: (1) SCC 873 : 1969-II-LLJ-651. In that case, their Lordships have held that Article 137 of the Schedule to the Limitation Act, 1963 does not apply to applications under Section 33-C(2) of the Industrial Disputes Act, so that no limitation is prescribed for such applications. Further it is held that Section 20(1) of the Minimum Wages Act cannot be invoked in respect of an application in which the claim of the workmen is for computation of their benefit at a certain rate for over time work and work done on weekly off days where the employer contesting the application does not raise a dispute in relation to the rate pleaded by the applicants but merely alleges that no rates at all had been prescribed by the Government. Hence no question of the jurisdiction of the Labour Court to entertain the application under Section 33-C(2) of the Industrial Disputes Act being barred because of the provisions of Section 20(1) of the Minimum Wages Act can arise at all in such a case. The said decision is of no assistance to the workman in the case on hand. Similarly, Full Bench decision of Bombay High Court (at Nagpur) in Kohinoor Tobacco Products Pvt. Ltd., Adyal v. Presiding Officer, Second Labour Court, Nagpur and Ors. , reported in 1986 Lab. I.C 1055, is of no help to strengthen the case of the workman. In that case the learned Judges have held that Bonus Act is complete Code so far as the right to bonus is concerned. It is not a complete Code as far as the remedies are concerned. Application under Section 33-C(2) of the I.D. Act for claiming bonus under Section 10 of the Bonus Act is maintained under the given circumstances.
19. The judgment of the Supreme Court in Director General (Works) C.P.W.D. v. Ashok Kumar and Ors., 1999 (9) SCC 167 : 2000-I-LLJ-582, relied upon by the learned counsel for the workman does not help the case of the workman. In the facts and circumstances of the case the Supreme Court held as under at p. 583 of LLJ:
'3. Since in the instant case, the appellant himself had implemented the decision of Supreme Court in Surinder Singh case and had been paying salary to the respondents in the regular scale of pay in which the employees of the work-charged establishment were being paid it could not be urged thereafter that the respondents right to receive salary in the regular scale of pay should first be adjudicated upon by the Labour Court before they are given the salary in the regular scale of pay in which the employees of the work-charged establishment were being paid. We are not prepared to accept the said argument made by learned counsel. ...'
20. The finding of the Labour Court holding the workman directly employed by the CCI and not through a Contractor after the abolition of the Contract Labour (Regulation and Abolition) Act, 1970 does not require any further examination as the writ petition deserves to be allowed on the preliminary issue that the Labour Court has no jurisdiction to pass impugned award under Section 33-C(2) of the Act.
21. No other point was urged by the learned counsel for the parties.
22. In the result, for the abovesaid reasons, the writ petition is allowed and the Award of the Labour Court dated November 24, 1995 made in the Application No. 96 of 1992 is set aside to the extent indicated above and the application filed by the workman under Section 33-C(2) of the Act shall stand dismissed. However, in the circumstances of the case, the parties shall bear their own costs.