The Management of Modern Mills Limited, Hubli Vs. K.P. Shenoy and Another - Court Judgment

Excerpt:
- industrial disputes act, 1947. section 10 (1)(c): [subhash b. adi, j] belated reference delay of 13 years in seeking reference - finding of the labour court that the respondent has worked for 240 days direction of the labour court to reinstate the respondent without back wages finding of the labour court that if there is delay, relief has to be moulded held, in case of delay in seeking reference reinstatement is not automatic, several factors have to be taken into consideration. though the respondent has proved that she has worked for 240 days, however, the delay in seeking reference disentitle her from seeking reinstatement, instead, the respondent would be entitled for compensation. the labour court has found that the respondent had worked from 19080 to 1989 i.e., for 9 years. however, since there was delay, the reinstatement is not ordered, but the respondent is required to be compensated. in the light of the facts and circumstances of the case, the compensation rs.75,000/- was granted. - 5. it is well settled that section 33-c(2) of the act speaks of an existing right, and the remedy thereunder is only by way of computing the amount payable to a workman in respect of such existing right. the supreme court, therefore, in the delhi municipal corporation's case, categorically held that, where the very basis of the claim or the entitlement of the workman 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 supreme court further observed that 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 section 33-c(2), like that of the executing court's power to interpret the decree for the purpose of its execution. venkataramaiah, as he then was, speaking for the bench, referring to the earlier full bench decision of the supreme court in the central bank's case, as already referred to, observed that, by merely doing the same kind of work which is done by 'b' grade fitters, a workman appointed as a 'c' grade fitter will not be entitled to claim the wages of 'b' grade fitter unless he is duly promoted after getting through the prescribed trade tests, that such a workman cannot complain that he is not being paid the salary and allowances due to a 'b' grade fitter, since he does not possess an existing, right to claim it, and that, if on an adjudication made on the said question on a reference made under section 10(1) of the act, it is held that he should be deemed to be a member of the 'b' grade fitters, then only he would be able to claim the salary and allowances payable to 'b' grade fitters. 9. the decision of the division bench of this court in venkataramanappa's case, referred to above, which otherwise would have been binding on me, is to be distinguished for the reason that the observations of the constitution bench of the supreme court in central bank's case, on which the division bench based its decision, have since been referred to in the latter decision of the supreme court in the delhi municipal corporation's case, as already referred to and even in the light of the said observations of the supreme court in the central bank's case, the supreme court held that the adjudication of a dispute like the present one, cannot be called incidental to the decision of the question under section 33-c(2) of the act.order1. the first respondent had been working in the petitioner-modern mills as an accountant, having joined the said mill in the year 1952. he filed an application before the labour court, hubli, under section 33-c(2) of the industrial disputes act, 1947 ('act' for short), making a claim thus: he had worked as an accountant from 15-10-1952 to 19-11-1962 on a salary of rs. 300/- per month including allowances. on 20-11-1962, he was asked to take charge of the post of chief accountant, one g.m. hemmadi, who stood transferred to the head office at bombay.' he, thus, worked as chief accountant with effect from 20-11-1962 to 1-8-1973 and then, from 1-8-1973 to 1-11-1974 as administrative officer. during the period he worked as chief accountant, he was entitled to receive salary of that of the chief accountant viz., at the scale ranging from rs.400/- to rs. 1,200/- per month. the difference in the wages, therefore, should be worked out and should be directed to be paid to him.2. the contention of the petitioner that the 1st respondent was not a workman, was negatived by the labour court and was not disturbed by this court when the petitioner sought to challenge that finding in a writ petition. before the labour court, the petitioner also contended that the 1st respondent did not have an existing right as chief accountant, and as such, the application under section 33-c(2) of the act was not maintainable. in this context, petitioner also denied, either having asked the 1st respondent to work as chief accountant, or of the 1st respondent having ever worked as chief accountant. it was contended that, 1st respondent had been employed only as an accountant w.e.f. 15-10-1952; that he had not been asked to take charge of the chief accountant, nor did 1st respondent worked as chief accountant between 1962 to 1974 as alleged by 1st respondent, that 1st respondent was actually promoted as an administrative officer w.e.f. 1-11-1974 with a terminal benefit of rs. 150/- per month.3. among the issues raised by the labour court, issue no.4 was whether the application was maintainable. the labour court held that the application was maintainable. on facts, having found in favour of the 1st respondent, the labour court proceeded to direct the petitioner to pay rs. 44,855.20 with 9% interest on account of his having worked as chief accountant.4. the learned counsel for the petitioner sri subramanya, and the learned counsel for the 1st respondent ms. suma, have submitted at length, not only on the question of the finding of the labour court as to maintainability of the application under section 33-c(2) of the act, but, also on the other findings. since i am holding that the finding of the labour court as to the maintainability of 1st respondent's application under section 33-c(2) of the act is not sustainable, being legally incorrect, i do not propose to go into merits of other aspects. i refrain from doing so for another reason, viz., that eventually, i am giving liberty to the 1st respondent to raise an industrial dispute if he so chooses with regard to his contention that he had been appointed as chief accountant and that he worked so.5. it is well settled that section 33-c(2) of the act speaks of an existing right, and the remedy thereunder is only by way of computing the amount payable to a workman in respect of such existing right. in addition to the computation as stipulated therein, it is permissible for the labour court to go into the incidental questions. as held by the supreme court in the case to be presently referred to, the role of the labour court in a proceeding under section 33-c(2) of the act is that of an executing court. to the extent that any executing court can interpret the decree without going beyond the decree, the labour court also can, if the computation is sought on the basis of a settlement, award etc., interpret the said settlement, award etc. it cannot determine the very dispute as to the existence or otherwise of the right on the basis of which the computation in terms of section 33-c(2) of the act is to be done.6. 1st respondent contended that he had been directed by the petitioner to take over charge from g.m. hemmadi as chief accountant, that he so took over the charge as chief accountant and worked as chief accountant from 20-11-1962 to 1-8-1973. petitioner contended that, 1st respondent had neither been asked to take over the charge as chief accountant, nor did he work as chief accountant, and that right from 15-10-1952 till 1-8-1973, when he was promoted as administrative officer, 1st respondent worked throughout as an accountant only. thus, the very question that initially had to be decided was whether, from the post of accountant, the 1st respondent had been promoted as chief accountant w.e.f. 20-11-1962, and whether he was, therefore, entitled to claim wages of the post of chief accountant. if this question is either conceded or adjudicated upon in favour of the 1st respondent, then, under section 33-c(2) of the act, it would be permissible to compute the amount payable to him as the difference of wages between what an accountant draws and what a chief accountant draws. but, where the very promotion of the 1st respondent from the post of accountant to that of chief accountant on a higher scale of pay is disputed, and the further fact of the 1st respondent having so worked as chief accountant having been disputed, this aspect cannot be called merely incidental to the aspect of computation of money under section 33-c(2) of the act. on the other hand, this aspect, viz., whether 1st respondent was promoted or asked to work as chief accountant is of such substantial importance that it is very much an industrial dispute that needs to be adjudicated upon by the appropriate labour forum. only on such adjudication, and after the right of the 1st respondent as chief accountant is pronounced by the appropriate labour forum, that it could be called an existing right within the meaning of section 33-c(2) of the act, what remains thereafter being merely computation of money payable to him being the difference in wages of an accountant and of the chief accountant. the labour court has erred in treating this main question as the one incidental to the question of computation of money.7. ms. suma, learned counsel for the 1st respondent, refers to a decision of the division bench of this court, which duly supports her submission i.e., in g. venkataramanappa and another v c. kotappa @ pillanna and another . the workmen of the 1st respondent concerned therein (employer) had filed an application under section 33-c(2) of the act for enforcement of their claim for minimum bonus under the provisions of the payment of bonus act. that application was opposed by the employer on several grounds and the matter eventually led to this court. one of the contentions urged on behalf of the employer before the division bench was as to whether section 33-c(2) of the act could have been resorted to by the employees for recovery of minimum bonus payable to them under the act. his lordship justice shivashankar bhat, speaking for the bench, referred to the decision of the supreme court in central bank of india limited v p.s. rajagopalan, to hold that, under section 33-c(2) of the act, the existence of the right of the workmen for the money claimed by them can be gone into by the labour court, and the said power was incidental to its main power to enforce the claim.8. this very decision of the supreme court in central bank's case, supra, came to be explained by the supreme court in a latter decision in so far as certain observations therein were concerned. that was in municipal corporation of delhi v ganesh razak and another . to the extent the division bench of this court in the decision referred to above, relied upon the decision of the supreme court in central bank's case, supra, it is to be understood in the context that, on the date the division bench of this court was relying upon the said decision of the supreme court in central bank's case, there was no such further elucidation on this question by the supreme court as is available as on today in the delhi municipal corporation's case, disposed of in the year 1994. referring to the very decision of the supreme court in the central bank's case, supra, the supreme court observed in the said latter decision of the delhi municipal corporation's case, that the central bank's case, was a case in which the question of maintainability of proceedings under section 33-c(2) of the act was considered in a claim made by the workmen on the basis of the shastry award, that the employer had disputed the claim of the workmen on several grounds including applicability of section 33-c(2) of the act, and that it was urged that since the applications involved a question of interpretation of the shastry award, they were outside the purview of section 33-c(2), because interpretation of awards or settlements has been expressly provided for by section 36a and that this objection was rejected in the said central bank's case, with the supreme court pointing out the difference in the scope of section 36a and section 33-c(2) indicating that the distinction lies in the fact that section 36a is not concerned with the implementation or execution of the award whereas that is the sole purpose of section 33-c(2). the supreme court proceeds to point out in the delhi municipal corporation's case, that the earlier central bank's case, itself indicates that 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, like the executing court's power to interpret the decree for the purpose of 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 the entitlement, or the basis of the claim, if there be no prior adjudication or recognition of the same by the employer. the supreme court, therefore, in the delhi municipal corporation's case, categorically held that, where the very basis of the claim or the entitlement of the workman 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 supreme court further held that 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. the supreme court further observed that 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 section 33-c(2), like that of the executing court's power to interpret the decree for the purpose of its execution.8-a. in another case, the facts of which are similar to the present case, the supreme court dealt with this aspect in the following manner. that was in p.k. singh and others v presiding officer and others, certain workmen of the small arms factory, kanpur, had approached the labour court with a claim under section 33-c(2) of the act for computation of the wages payable to them for certain periods on the ground that, though they had been engaged as 'c' grade fitters, they were entitled to the salary and allowances payable to 'b' grade fitters since they were doing the same duty as 'b' grade fitters. his lordship justice e.s. venkataramaiah, as he then was, speaking for the bench, referring to the earlier full bench decision of the supreme court in the central bank's case, as already referred to, observed that, by merely doing the same kind of work which is done by 'b' grade fitters, a workman appointed as a 'c' grade fitter will not be entitled to claim the wages of 'b' grade fitter unless he is duly promoted after getting through the prescribed trade tests, that such a workman cannot complain that he is not being paid the salary and allowances due to a 'b' grade fitter, since he does not possess an existing, right to claim it, and that, if on an adjudication made on the said question on a reference made under section 10(1) of the act, it is held that he should be deemed to be a member of the 'b' grade fitters, then only he would be able to claim the salary and allowances payable to 'b' grade fitters. his lordship, while holding that the application under section 33-c(2) of the act was not maintainable, nevertheless gave the liberty to the workmen to seek a reference under section 10 of the act, of the question whether they were entitled to be treated as 'b' grade fitters.9. the decision of the division bench of this court in venkataramanappa's case, referred to above, which otherwise would have been binding on me, is to be distinguished for the reason that the observations of the constitution bench of the supreme court in central bank's case, on which the division bench based its decision, have since been referred to in the latter decision of the supreme court in the delhi municipal corporation's case, as already referred to and even in the light of the said observations of the supreme court in the central bank's case, the supreme court held that the adjudication of a dispute like the present one, cannot be called incidental to the decision of the question under section 33-c(2) of the act. since a view contrary to the one taken by the division bench of this court in venkataramanappa's case, is thus taken by the supreme court subsequently in the delhi municipal corporation's case, i am following the said latter decision of the supreme court in the delhi municipal corporation's case.10. i have to, therefore, conclude that, unless and until the question of the first respondent having been appointed or asked to work as chief accountant and his having so worked as chief accountant, is first adjudicated upon by the labour court since the same is not recognised by the employer, the first respondent has no existing right to claim computation under section 33-c(2) of the act. the application under section 33-c(2) of the act, therefore, was not maintainable, and the labour court erred in holding to the contrary. 11. petition is allowed. impugned order is set aside. first respondent is, however, given liberty of raising an industrial dispute in this regard, and to have his rights adjudicated upon by the appropriate labour forum. if, within one month from the date of obtaining certified copy of this order, first respondent gives a representation to the appropriate government seeking reference, then, the appropriate government shall make a reference of that dispute under section 10 of the act to the appropriate labour forum, and in that event, no objection shall be raised by the petitioner that it is not an industrial dispute or that no such reference would be maintainable.

Judgment:
ORDER

1. The first respondent had been working in the petitioner-Modern Mills as an Accountant, having joined the said mill in the year 1952. He filed an application before the Labour Court, Hubli, under Section 33-C(2) of the Industrial Disputes Act, 1947 ('Act' for short), making a claim thus: He had worked as an Accountant from 15-10-1952 to 19-11-1962 on a salary of Rs. 300/- per month including allowances. On 20-11-1962, he was asked to take charge of the post of Chief Accountant, one G.M. Hemmadi, who stood transferred to the Head Office at Bombay.' He, thus, worked as Chief Accountant with effect from 20-11-1962 to 1-8-1973 and then, from 1-8-1973 to 1-11-1974 as Administrative Officer. During the period he worked as Chief Accountant, he was entitled to receive salary of that of the chief Accountant viz., at the scale ranging from Rs.400/- to Rs. 1,200/- per month. The difference in the wages, therefore, should be worked out and should be directed to be paid to him.

2. The contention of the petitioner that the 1st respondent was not a workman, was negatived by the Labour Court and was not disturbed by this Court when the petitioner sought to challenge that finding in a writ petition. Before the Labour Court, the petitioner also contended that the 1st respondent did not have an existing right as Chief Accountant, and as such, the application under Section 33-C(2) of the Act was not maintainable. In this context, petitioner also denied, either having asked the 1st respondent to work as Chief Accountant, or of the 1st respondent having ever worked as Chief Accountant. It was contended that, 1st respondent had been employed only as an Accountant w.e.f. 15-10-1952; that he had not been asked to take charge of the Chief Accountant, nor did 1st respondent worked as Chief Accountant between 1962 to 1974 as alleged by 1st respondent, that 1st respondent was actually promoted as an Administrative Officer w.e.f. 1-11-1974 with a terminal benefit of Rs. 150/- per month.

3. Among the issues raised by the Labour Court, issue No.4 was whether the application was maintainable. The Labour Court held that the application was maintainable. On facts, having found in favour of the 1st respondent, the Labour Court proceeded to direct the petitioner to pay Rs. 44,855.20 with 9% interest on account of his having worked as Chief Accountant.

4. The learned Counsel for the petitioner Sri Subramanya, and the learned Counsel for the 1st respondent Ms. Suma, have submitted at length, not only on the question of the finding of the Labour Court as to maintainability of the application under Section 33-C(2) of the Act, but, also on the other findings. Since I am holding that the finding of the Labour Court as to the maintainability of 1st respondent's application under Section 33-C(2) of the Act is not sustainable, being legally incorrect, I do not propose to go into merits of other aspects. I refrain from doing so for another reason, viz., that eventually, I am giving liberty to the 1st respondent to raise an industrial dispute if he so chooses with regard to his contention that he had been appointed as Chief Accountant and that he worked so.

5. It is well settled that Section 33-C(2) of the Act speaks of an existing right, and the remedy thereunder is only by way of computing the amount payable to a workman in respect of such existing right. In addition to the computation as stipulated therein, it is permissible for the Labour Court to go into the incidental questions. As held by the Supreme Court in the case to be presently referred to, the role of the Labour Court in a proceeding under Section 33-C(2) of the Act is that of an Executing Court. To the extent that any Executing Court can interpret the decree without going beyond the decree, the Labour Court also can, if the computation is sought on the basis of a settlement, award etc., interpret the said settlement, award etc. It cannot determine the very dispute as to the existence or otherwise of the right on the basis of which the computation in terms of Section 33-C(2) of the Act is to be done.

6. 1st respondent contended that he had been directed by the petitioner to take over charge from G.M. Hemmadi as Chief Accountant, that he so took over the charge as Chief Accountant and worked as Chief Accountant from 20-11-1962 to 1-8-1973. Petitioner contended that, 1st respondent had neither been asked to take over the charge as Chief Accountant, nor did he work as Chief Accountant, and that right from 15-10-1952 till 1-8-1973, when he was promoted as Administrative Officer, 1st respondent worked throughout as an Accountant only. Thus, the very question that initially had to be decided was whether, from the post of Accountant, the 1st respondent had been promoted as Chief Accountant w.e.f. 20-11-1962, and whether he was, therefore, entitled to claim wages of the post of Chief Accountant. If this question is either conceded or adjudicated upon in favour of the 1st respondent, then, under Section 33-C(2) of the Act, it would be permissible to compute the amount payable to him as the difference of wages between what an Accountant draws and what a Chief Accountant draws. But, where the very promotion of the 1st respondent from the post of Accountant to that of Chief Accountant on a higher scale of pay is disputed, and the further fact of the 1st respondent having so worked as Chief Accountant having been disputed, this aspect cannot be called merely incidental to the aspect of computation of money under Section 33-C(2) of the Act. On the other hand, this aspect, viz., whether 1st respondent was promoted or asked to work as Chief Accountant is of such substantial importance that it is very much an industrial dispute that needs to be adjudicated upon by the appropriate labour forum. Only on such adjudication, and after the right of the 1st respondent as Chief Accountant is pronounced by the appropriate labour forum, that it could be called an existing right within the meaning of Section 33-C(2) of the Act, what remains thereafter being merely computation of money payable to him being the difference in wages of an Accountant and of the Chief Accountant. The Labour Court has erred in treating this main question as the one incidental to the question of computation of money.

7. Ms. Suma, learned Counsel for the 1st respondent, refers to a decision of the Division Bench of this Court, which duly supports her submission i.e., in G. Venkataramanappa and Another v C. Kotappa @ Pillanna and Another . The workmen of the 1st respondent concerned therein (employer) had filed an application under Section 33-C(2) of the Act for enforcement of their claim for minimum bonus under the provisions of the Payment of Bonus Act. That application was opposed by the employer on several grounds and the matter eventually led to this Court. One of the contentions urged on behalf of the employer before the Division Bench was as to whether Section 33-C(2) of the Act could have been resorted to by the employees for recovery of minimum bonus payable to them under the Act. His Lordship Justice Shivashankar Bhat, speaking for the Bench, referred to the decision of the Supreme Court in Central Bank of India Limited v P.S. Rajagopalan, to hold that, under Section 33-C(2) of the Act, the existence of the right of the workmen for the money claimed by them can be gone into by the Labour Court, and the said power was incidental to its main power to enforce the claim.

8. This very decision of the Supreme court in Central Bank's case, supra, came to be explained by the Supreme Court in a latter decision in so far as certain observations therein were concerned. That was in Municipal Corporation of Delhi v Ganesh Razak and Another . To the extent the Division Bench of this Court in the decision referred to above, relied upon the decision of the Supreme Court in Central Bank's case, supra, it is to be understood in the context that, on the date the Division Bench of this Court was relying upon the said decision of the Supreme Court in Central Bank's case, there was no such further elucidation on this question by the Supreme Court as is available as on today in the Delhi Municipal Corporation's case, disposed of in the year 1994. Referring to the very decision of the Supreme Court in the Central Bank's case, supra, the Supreme Court observed in the said latter decision of the Delhi Municipal Corporation's case, that the Central Bank's case, was a case in which the question of maintainability of proceedings under Section 33-C(2) of the Act was considered in a claim made by the workmen on the basis of the Shastry award, that the employer had disputed the claim of the workmen on several grounds including applicability of Section 33-C(2) of the Act, and that it was urged that since the applications involved a question of interpretation of the Shastry award, they were outside the purview of Section 33-C(2), because interpretation of awards or settlements has been expressly provided for by Section 36A and that this objection was rejected in the said Central Bank's case, with the Supreme Court pointing out the difference in the scope of Section 36A and Section 33-C(2) indicating that the distinction lies in the fact that Section 36A is not concerned with the implementation or execution of the award whereas that is the sole purpose of Section 33-C(2). The Supreme Court proceeds to point out in the Delhi Municipal Corporation's case, that the earlier Central Bank's case, itself indicates that 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, like the Executing Court's power to interpret the decree for the purpose of 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 the entitlement, or the basis of the claim, if there be no prior adjudication or recognition of the same by the employer. The Supreme Court, therefore, in the Delhi Municipal Corporation's case, categorically held that, where the very basis of the claim or the entitlement of the workman 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 Supreme Court further held that 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. The Supreme Court further observed that 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 Section 33-C(2), like that of the Executing Court's power to interpret the decree for the purpose of its execution.

8-A. In another case, the facts of which are similar to the present case, the Supreme Court dealt with this aspect in the following manner. That was in P.K. Singh and Others v Presiding Officer and Others, Certain workmen of the Small Arms Factory, Kanpur, had approached the Labour Court with a claim under Section 33-C(2) of the Act for computation of the wages payable to them for certain periods on the ground that, though they had been engaged as 'C' Grade Fitters, they were entitled to the salary and allowances payable to 'B' Grade Fitters since they were doing the same duty as 'B' Grade Fitters. His Lordship Justice E.S. Venkataramaiah, as he then was, speaking for the Bench, referring to the earlier Full Bench decision of the Supreme Court in the Central Bank's case, as already referred to, observed that, by merely doing the same kind of work which is done by 'B' Grade Fitters, a workman appointed as a 'C' Grade Fitter will not be entitled to claim the wages of 'B' Grade Fitter unless he is duly promoted after getting through the prescribed trade tests, that such a workman cannot complain that he is not being paid the salary and allowances due to a 'B' Grade Fitter, since he does not possess an existing, right to claim it, and that, if on an adjudication made on the said question on a reference made under Section 10(1) of the Act, it is held that he should be deemed to be a member of the 'B' Grade Fitters, then only he would be able to claim the salary and allowances payable to 'B' Grade Fitters. His Lordship, while holding that the application under Section 33-C(2) of the Act was not maintainable, nevertheless gave the liberty to the workmen to seek a reference under Section 10 of the Act, of the question whether they were entitled to be treated as 'B' Grade Fitters.

9. The decision of the Division Bench of this Court in Venkataramanappa's case, referred to above, which otherwise would have been binding on me, is to be distinguished for the reason that the observations of the Constitution Bench of the Supreme Court in Central Bank's case, on which the Division Bench based its decision, have since been referred to in the latter decision of the Supreme Court in the Delhi Municipal Corporation's case, as already referred to and even in the light of the said observations of the Supreme Court in the Central Bank's case, the Supreme Court held that the adjudication of a dispute like the present one, cannot be called incidental to the decision of the question under Section 33-C(2) of the Act. Since a view contrary to the one taken by the Division Bench of this Court in Venkataramanappa's case, is thus taken by the Supreme Court subsequently in the Delhi Municipal Corporation's case, I am following the said latter decision of the Supreme Court in the Delhi Municipal Corporation's case.

10. I have to, therefore, conclude that, unless and until the question of the first respondent having been appointed or asked to work as Chief Accountant and his having so worked as Chief Accountant, is first adjudicated upon by the Labour Court since the same is not recognised by the employer, the first respondent has no existing right to claim computation under Section 33-C(2) of the Act. The application under Section 33-C(2) of the Act, therefore, was not maintainable, and the Labour Court erred in holding to the contrary.

11. Petition is allowed. Impugned order is set aside. First respondent is, however, given liberty of raising an industrial dispute in this regard, and to have his rights adjudicated upon by the appropriate labour forum. If, within one month from the date of obtaining certified copy of this order, first respondent gives a representation to the appropriate Government seeking reference, then, the appropriate Government shall make a reference of that dispute under Section 10 of the Act to the appropriate labour forum, and in that event, no objection shall be raised by the petitioner that it is not an industrial dispute or that no such reference would be maintainable.