M. VENUGOPAL, J.
1. The Appellant/Petitioner has focussed the instant Writ Appeal as against the order dated 23.07.2008 in W.P.No.2296 of 2008 passed by the Learned Single Judge.
2. The Learned Single Judge, while passing the orders in W.P.No.2296 of 2008 on 23.07.2008, (filed by the Appellant/ Petitioner), has, among other things, observed that in the case on hand, the Labour Court (1st Respondent) has rightly gone into the question of examining the claims of workmen under Section 25(o) of the Industrial Disputes Act, 1947, they while exercising jurisdiction under Section 33C (2)of the Act etc. and has rendered a finding that the industrial establishments has in fact been closed and accordingly, the 1st Respondent/Labour Court has concluded the amount due to the workmen and ordered the management to pay the same and consequently, dismissed the Writ Petition without costs.
3. According to the Learned Counsel for the Appellant/Petitioner, the Learned Single Judge, while dismissing the W.P.No.2296 of 2008, had failed to appreciate that an application as per Section 33C (2) of the Industrial Disputes Act, 1947 was not maintainable without there being a prior adjudication, reference or determination of the rights of the workmen.
4. The Learned Counsel for the Appellant/Petitioner urges before this Court that the 1st Respondent/Labour Court had erred in holding that the pendency of I.D.No.46 of 2002 on the file of the Industrial Tribunal, Chennai was not a bar to adjudicate the petition under Section 33C (2) of the Industrial Disputes Act, 1947.
5. It is the contention of the Learned Counsel for the Appellant/ Petitioner (Management) that the Learned Single Judge had failed to take into consideration that the issue pending adjudication before the Industrial Tribunal is whether the Management had suspended the work temporarily or there was an illegal closure of the establishment.
6. Advancing his arguments, the Learned Counsel for the Appellant/Petitioner submits that the Learned Single Judge wrongly observed in the Writ Petition that Section 33C (2) of the Industrial Disputes Act, embraces within its ambit the pre-existing rights of workmen emanating from Chapter V(A) or V(B) of the Act.
7. Lastly, it is the submission of the Learned Counsel for the Appellant/Petitioner that the Learned Single Judge had omitted to take into account of the fact that the 1st Respondent/Labour Court under Section 33C (2) of the Industrial Disputes Act could not usurp the powers and functions of the Industrial Tribunal and that too, when I.D.No.46 of 2002 is admittedly pending adjudication before the Industrial Tribunal.
8. Per contra, it is the submission of the Learned Counsel for the Contesting Respondents that the Appellant/Management had not obtained permission as per Section 25(o) of the Industrial Disputes Act from the Government to close down the establishment and therefore, the said closure was an illegal one.
9. Further, it is the plea of the Contesting Respondents/Workmen that from the day of deemed closure, they were entitled to get all monetary benefits and in respect of recovery of money due from the Appellant/Management, the claim petitions filed by the workmen were per se maintainable in law.
10. To put it differently, the stand of the contesting workmen is that a right to recover monetary amount due from the Appellant/ Management is a pre-existing right by operation of law as per Section 25(o) of the Industrial Disputes Act and in such an event, the 1st Respondent/Labour Court has every jurisdiction to compute the monetary benefits due in terms of Section 33C (2) of the Act.
11. In short, the Learned Counsel for the Contesting Respondents contends that both the 1st Respondent/Labour Court and the Learned Single Judge had rightly held that the claim petitions filed by the Respondents/Workmen are maintainable and ultimately, directed the Appellant/Management to pay the amount calculated by the 1st Respondent/Labour Court to the workmen.
12. The Learned Counsel for the Appellant/Management, in support of the contention that the scope of proceedings under Section 33C (2) of the Industrial Disputes Act, 1947 is in the nature of execution proceedings, cites the decision of the Hon'ble Supreme Court in Central Inland Water Transport Corporation Limited V. The Workmen and another, [AIR 1974 Supreme Court 1604 and 1605] wherein it is held as follows:
"A proceeding under Section 33C(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In a suit, a claim for relief made by the Plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii)the corresponding liability of the defendant, including whether the defendant is, at all, liable or not and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding Determination no. (iii)referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). Since a proceeding under Section 33C (2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33C (2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental' Therefore, when a claim is made before the Labour Court under S.33C(2) that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions -say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. AIR 1968 SC 218, (1968) 1 Lab LJ 589 (SC) and AIR 1964 SC 743 Rel. on."
13. He relies on the decision of the Hon'ble Supreme Court in Municipal Corporation of Delhi V. Ganesh Razak and another, [1995 I LLJ 395 at page 396] wherein it is observed as follows:
"33C(2) extends to interpretation of the awards or settlements on which the workmen's right rests, like the Executing Court's power to interpret the decree for the purpose of the execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer.
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 is relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Sec.33C(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 Sec.33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter, for the purpose of implementation or enforcement thereof some ambiguity requires interpretation, that the interpretation is treated as incidental to the Labour Court's power under Sec.33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.
Without an adjudication of their 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 Sec.33C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement of the benefit before computation of such a benefit could be sought. Hence, the applications under Sec.33C(2) of the Act are not maintainable."
14. He invites the attention of this Court to the decision of the Hon'ble Supreme Court inState Bank of India V. Ram Chandra Dubey and others, [2001 (1) LLN 58 at page 59] wherein it is held as follows:
"The benefit sought to be enforced under S.33C(2) of the Industrial Disputes Act, 1947, was necessarily a pre-existing benefit or 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 S.33C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back-wages. Hence, that relief must be deemed to have been denied, for what is claimed but not granted, necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back-wages all relevant circumstances which will have to be gone into, are to be considered in a judicial manner. Therefore, the appropriate forum wherein such question of back-wages would be decided is only in a proceeding to whom a reference under S.10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, to find out whether the workman is entitled to back-wages at all and to what extent. Therefore, the High Court ought not to have presumed that the award of the Labour Court for grant of back-wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back-wages or that."
15. Yet another decision is cited on behalf of the Appellant, in Management of Binny Limited V. Presiding Officer, Principal Labour Court and others, [2009 (1) LLN 340] wherein it is held that'it is the settled position of law that in the absence of any pre-existing right in favour of workmen, Labour Court ought not to have entertained the application and computed the monetary benefits'.
16. Earlier, in the M.P.No.1 of 2008 in W.A.No.1131 of 2008 filed by the Appellant/Petitioner (Management), a relief of interim stay of all further proceedings on the order passed in C.P.Nos.151/05, 212/05, 213/05, 214/05, 216/05, 217/05, 228/05 229/05, 346/05, 347/05, 361/05, 362/05 dated 31.10.2007 on the file of the 1st Respondent/ Labour Court, Vellore was sought for before this Court.
17. On 21.11.2008, this Court, in M.P.No.1 of 2008 in W.A.No.1131 of 2008, has passed a conditional stay order in directing the Appellant/Petitioner (Management) to deposit a sum of Rs.30,000/- against each worker i.e., Respondents 2 to 43, before the 1st Respondent/Labour Court within a period of three weeks in which event, the stay order would operate and in case of default of payment of such amount, the stay order would be automatically vacated.
18. Based on the representation that as against the conditional order passed in M.P.No.1 of 2008 in W.A.No.1131 of 2008, the Appellant/Petitioner (Management) has preferred S.L.P.(Civil) No.30128/2008 before the Hon'ble Supreme Court of India and the same was dismissed and in view of the same, this Court, on 19.10.2009, had dismissed the present Writ Appeal.
19. As against the order dated 19.10.2009 passed by this Court in dismissing the Writ Appeal No.1131 of 2008, the Appellant/ Petitioner (Management) had filed Civil Appeal No.11145 of 2011 (arising out of S.L.P.(C) No.33677 of 2009) before the Hon'ble Supreme Court of India and the Hon'ble Supreme Court, on 12.12.2011, had set aside the order of dismissal dated 19.10.2009 in W.A.No.1131 of 2008 passed by this Court and remanded the matter back to this Court for fresh consideration and to decide the case on merits.
20. While allowing the Civil Appeal No.11145 of 2011 on 12.12.2011, the Hon'ble Supreme Court of India had opined as follows:
"It is admitted by the learned counsel for the parties that pursuant to an interim order passed by the High Court in Writ Appeal No.1131 of 2008 and also the Order dated 21st November, 2008 passed by this Court, the appellants have deposited an amount of Rs.30,000/- against each worker in the Labour Court, Vellore and that the said amount is lying with the Labour Court. On proper application being made by the workmen concerned and on being satisfied with the identity of the workmen, the Labour Court shall release the said amount of Rs.30,000/- each to the workers without unnecessary delay. The amounts so released to the workmen may be adjusted towards the claims of the workmen as per the final decision in the pending dispute. The release of the amounts will be without prejudice to the contentions of the parties."
21. It is not in dispute that the Government, in G.O.(D).No.830, Labour and Employment Department, dated 01.10.2002, had referred the dispute to decide the validity of suspension of operation of Appellant/Petitioner's establishment from 15.04.2002 for adjudication as per Section 10(1)(d) of the Industrial Disputes Act [at the request of the Tannery Workers Sangam, Vaniyampadi] before the Tribunal, Chennai, with a request to decide the dispute within six months from the date of reference. As on date, I.D.No.46 of 2002 is pending adjudication on the file of the Industrial Tribunal, Chennai.
22. It is represented on behalf of the Contesting Respondents that earlier in I.D.No.46 of 2002 an ex parte award was passed on 09.03.2004 and later, the same was set aside. Thereafter, in I.D.No.46 of 2002, after contest, on 10.11.2008, an Award was passed by the Industrial Tribunal, Tamil Nadu, Chennai – 104. In the Award, the Industrial Tribunal came to the consequent conclusion that suspension of operation of Tannery viz., R.S.L. 'B' Tannery, Vaduvanthangal from 15.04.2002 was not justified and workers were entitled for full wages. As against the said Award dated 10.11.2008 in I.D.No.46 of 2002 passed by the Industrial Tribunal, Tamil Nadu, Chennai, the Appellant/Management filed W.P.No.15372 of 2009 before this Court and this Court on 31.10.2011 had resultantly held that the Tribunal had not discharged its statutory functions in terms of the Industrial Disputes Act and interfered with the impugned Award by setting aside the same and allowed the Writ Petition, by remitting back the matter to the Industrial Tribunal, Chennai for fresh disposal in accordance with law after due notice to the parties. Also, this Court permitted the parties to file an additional pleadings and appropriate documents in order to have an effective disposal of the dispute and granted six months' time from the date of receipt of the order to the Tribunal to dispose of the same.
23. As on date, I.D.No.46 of 2002 is pending on the file of the Presiding Officer, Industrial Tribunal, Chennai. The issue whether the suspension of operation as claimed by the Appellant/Petitioner (Management) is a true one? or is it a case of lock out? or even a case of lay off? (or whether Chapter VA or Chapter VB of the Industrial Disputes Act, 1947 is applicable or otherwise?) these are all matters required to be adjudicated by the Industrial Tribunal on merits in the pending industrial dispute, based on the pleadings and oral and documentary evidence if already available on record/to be adduced by the parties if any.
24. In fact, the Appellant/Petitioner (Management) had taken a stand (as seen from its counter in C.P.No.216/2005 in paragraph 4) that due to general recession in leather business and severe financial crunch, the establishment could not be operated and therefore, the suspension of production was declared by the Notice dated 12.04.2002 setting out in detail the reasons for declaring such suspension of production, to tide over the situation. More specifically, the Appellant/ Petitioner (Management) had pleaded that applicability of Chapter V B and Section 25(o) of the I.D. Act were of no relevance for the purpose of deciding the main issue I.D.No.46 of 2002 pending for final adjudication on the file of Industrial Tribunal, Tamil Nadu, Chennai.
25.At this juncture, we deem it appropriate to pertinently point out that Section 33C of the Industrial Disputes Act, 1947 provides not only a form but also a procedure in regard to the computation of monetary, as well as non-monetary benefits in terms of money. Also, it speaks of a machinery for effecting the recovery of such claims. As such, the workmen can claim not only a benefit which could be computed in terms of money, but also any monetary sum due from their employer, like arrears of wages, salary or other allowances which were withheld. Persons falling within the definition of Section 2(s) 'Workman' of the Industrial Disputes Act, 1947 viz., workmen are entitled to maintain an application under Section 33C (2) of the I.D. Act read with necessary rules.
26. However, in Section 33C (2) proceedings of the Industrial Disputes Act, if the rights of workmen were denied by an employer, the same would not oust the jurisdiction of the Labour Court, in our considered opinion. In this connection, it is to be noted that if the foundation of the claim is in serious doubt and the matter is hotly contested between the parties, then, the core issue will have to be determined in an elaborate fashion and admittedly, when the main dispute is pending with the Industrial Tribunal, the 1st Respondent/ Labour Court, in our opinion, is not competent to decide the matter even incidentally as regards the computation of benefits. To put it precisely, a pre-existing right or benefit will squarely attract the jurisdiction of the Labour Court exercisingly its powers as per Section 33C (2) of the Industrial Disputes Act.
27. To maintain an application as per Section 33C (2) of the Industrial Disputes Act, two factors are to be considered: (a) that a workman is entitled to receive any money or benefit; (b) that the benefit is capable of being computed in terms of monetary sum.
28. In reality, Section 33C (2) is in the nature of execution proceedings, for enforcement of 'Existing Rights' if the claim is reasonably, genuinely and seriously disputed, then, the said dispute is to be decided in threadbare and such a matter, in our considered view, is not to be determined as per the ingredients of Section 33C (2) of the Industrial Disputes Act, because of the reason that the subject matter in issue partakes the character of an industrial dispute. If the adjudicatory process which gives rise to an industrial dispute, then, it should be left for determination as per Section 10(1) of the Industrial Disputes Act [either Board or Court or Tribunal as the case may be]. As a logical corollary, an industrial dispute cannot be decided conclusively in a proceeding under Section 33C (2) of the Industrial Disputes Act.
29. That apart, a reading of Section 33C (2) of the Industrial Disputes Act pellucidly makes it clear that the determination of a question in regard to the computation of monetary amount, in few cases are to be proceeded by an enquiry into the existence of a workers right.
30. In this connection, we worth recall the following decisions to secure the ends of substantial justice in our processual system of Justice Delivery System:
(a) InHarnam Chand and others V. The Management, Punjab University Printing Press, [1994 III L.L.J. (Suppl.) 85], it is held as follows:
"As to the scope of Section 33C(2), the principles discernible are: (i) where a dispute is squarely covered by S.10 of the Industrial Disputes Act, that cannot be determined by the Labour Court while exercising the powers under S.33C(2) which are in the nature of execution proceedings, though the Labour Court is competent to interpret the award of the settlement in order to execute the same; (ii)if the liability arises from an award, settlement or under the provisions of Chapter V-A or by virtue of a statute or scheme made thereunder, mere denial by the employer may be sufficient to negative the claim under S.33C(2) before the Labour Court; (iii) where the right which is the foundation of the claim is itself in dispute which is exclusively within the competence of the Industrial Tribunal to adjudicate upon, it would be outside the purview of S.33C(2) to determine the question by the Labour Court. Under S.33C the power to the Labour Court is to compute the compensation claimed to be payable to the workmen; and (iv)where the questions raised are identical or referable to the interpretation of the settlement, award, etc., the Labour Court will be within its jurisdiction to determine the same in order to compute the compensation payable in terms of S.33C(2) of the Act. In this case admittedly the question for determination is the status of the claimants determined by the University. It is in dispute whether the University could determine the status of the Compositors and equate them with the Junior Compositors in the absence of determination of their status at the time of the settlement. There can be no gainsaying that the dispute raised is squarely covered by S.10 of the Industrial Disputes Act."
(b) In K.S.Natarajan V. The Presiding Officer, Principal Labour Court and Ananda Vikadan Vasan Publication Limited, (2010 (4) LLN 702): (MANU/TN/0179/2010), this Court has held that 'a Person shall not claim benefits, in absence of pre-existing rights, either under an award or settlement'.
(c) InM/s.Mineral Exploration Corporation Limited V. Presiding Officer, Labour Court, Hazaribagh, (2009 LLR 842 (Jharkand High Court), it is held that 'allowing an undetermined claim under Section 33C (2) of the Industrial Disputes Act, is an error'.
(d) In the decisionManagement of Tamil Nadu State Transport Corporation (Villupuram), Division No.II Limited, Vellore, V. Presiding Officer, Labour Court [2009 LLR at page 776], this Court has held that 'in order to sustain the petition under Section 33C (2) of the Industrial Disputes Act, there must be a pre-adjudication claim'.
31. Be that as it may, in the light of detailed discussions enumerated supra and on an overall assessment of the facts and circumstances of the case in a compendious fashion, we come to an inevitable conclusion that the subject matter of suspension of operation from 15.04.2002 of the Appellant/Petitioner (Management) is a matter of dispute which within the ambit and purview of Section 10 of the Industrial Disputes Act and as on date, I.D.No.46 of 2002 is pending for final adjudication before the Industrial Tribunal. As such, it is free from doubt that monetary benefits claims made by the Petitioners in C.P.Nos.151/05, 212/05, 213/05, 214/05, 216/05, 217/05, 228/05 229/05, 346/05, 347/05, 361/05, 362/05 are of a disputed nature and their claims were not determined earlierso as to crystalise into an enforceable and indefeasible right in their favour.
32. Viewed in the aforesaid perspective, we hold that the monetary claims made by the Respondents/Workmen in C.P.Nos.151/ 05, 212/05, 213/05, 214/05, 216/05, 217/05, 228/05 229/05, 346/05, 347/05, 361/05, 362/05 are untenable in the eye of law [in the absence of adjudication of their pre-existing rights]. Resultantly, the contra view taken by the Learned Single Judge in the order dated 23.07.2008 in W.P.No.2296 of 2008 to the effect that the 1st Respondent/Labour Court, while exercising its jurisdiction under Section 33C (2) of the Industrial Disputes Act, had power to examine the claims of the workmen under Section 25(o) of the Industrial Disputes Act and the common order dated 31.10.2007 in C.P.Nos.151 /05, 212/05, 213/05, 214/05, 216/05, 217/05, 228/05 229/05, 346/05, 347/05, 361/05, 362/05 to the effect that the Respondents are entitled to claim monetary benefits as per their respective claim petitions, are not legal and correct one, in the eye of law. Consequently, we allow the Writ Appeal and dismiss the C.P.Nos.151 /05, 212/05, 213/05, 214/05, 216/05, 217/05, 228/05 229/05, 346/05, 347/05, 361/05, 362/05 as not maintainable.
33.In the result, the Writ Appeal is allowed, leaving the parties to bear their own costs. The order passed by the Learned Single Judge dated 23.07.2008 in W.P.No.2296 of 2008 and the common order passed by the 1st Respondent/Labour Court in C.P.Nos.151/05, 212/05, 213/05, 214/05, 216/05, 217/05, 228/05 229/05, 346/05, 347/05, 361/05, 362/05 dated 31.10.2007 are set aside by this Court for the reasons assigned in this Writ Appeal to prevent an aberration of justice. The said Claim Petitions are dismissed as per se not maintainable in law.
34. It is brought to the notice of this Court that in W.P.No.15372 of 2001 (filed by the Appellant/Petitioner/Management earlier), this Court, while admitting the Writ Petition on 05.08.2009, had directed the Appellant/Management to deposit Rs.2,00,000/- to the credit of I.D.No.46 of 2002 on the file of 1st Respondent/Labour Court, Chennai and the said amount was deposited, as per directions issued, before the 1st Respondent/Labour Court [as informed by the Learned Counsel for the Appellant/Petitioner (Management)]. Also, pursuant to an interim order passed in M.P.No.1 of 2008 in W.A.No.1131 of 2008 dated 21.11.2008, the Appellant/Petitioner (Management) had deposited a sum of Rs.30,000/- against each worker in the 1st Respondent/Labour Court, Vellore and the Hon'ble Supreme Court of India, by its order dated 12.12.2011, while allowing the Civil Appeal No.11145 of 2011, had permitted the Respondents/Workmen concerned to file a proper application and the 1st Respondent/Labour Court, on being satisfied with the identity of the workmen, was directed to release the amount of Rs.30,000/- each to the workers without unnecessary delay and further that the amount so released to the workmen may be adjusted towards the claims of the workmen as per the final decision in the pending dispute.
35. It is also brought to the notice of this Court by the Learned Counsel for the Appellant/Petitioner (Management) that 22 workmen had resigned and settled their accounts [from and out of the Petitioners in claim petitions].
36.Inasmuch as the main Industrial Dispute No.46 of 2002 is pending for nearly a decade, as an immediate and equitable relief, this Court directs the Appellant/Petitioner (Management) to deposit a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) against each eligible worker before the Industrial Tribunal, Chennai. On proper application being made by the workmen concerned, the Tribunal, on being satisfied with the identity of the workmen, is directed to release the said amount of Rs.25,000/- each to the eligible workers without protracting the matter any further. The amounts so paid to the eligible workmen are directed to be adjusted towards their claim as per the final decision to be arrived at in the pending matter. It is open to the respective parties to make a request before the Industrial Tribunal for early disposal of I.D.No.46 of 2002, to prevent an aberration of justice. Upon such request being made, the Industrial Tribunal, Chennai is directed to dispose of the main industrial dispute within a period of three months from the date of receipt of copy of this Judgment. Liberty is granted to the parties to raise all factual and legal issues in I.D.No.46 of 2002 pending before the Industrial Tribunal.