JUDGMENT [ENTITY], J.
1. The Presiding Officer of the Second Labour Court, Nagpur, by a common Award dated September 15, 1989 disposed of two industrial dispute cases being [CASE NUMBER] and [CASE NUMBER]. [CASE NUMBER] was filed by one set of workers of R.S.R. Mohta Ginning & Pressing Factory, Hinganghat. [CASE NUMBER] was flied by another set of employees of the same factory. [CASE NUMBER] is filed by employees/applicants in [CASE NUMBER] and [CASE NUMBER] is flied by the employees/applicants in [CASE NUMBER] impugning the same award. The same award is also impugned by R.S.R. Mohta Spinning & Weaving Mills Pvt. Ltd. in [CASE NUMBER] and [CASE NUMBER].
2. Since all these petitions arise out of the same award, it will be convenient to dispose them of by a common Judgment and hence this common judgment. For the sake of convenience, in this judgment the parties are referred to as per their status in their original applications before the Labour Court. The petitioners in [CASE NUMBER] and [CASE NUMBER] i.e. R.S.R. Mohta Spinning & Weaving Mills Pvt. Ltd. are non-applicant No. 1 and R.S.R. Mohta Ginning & Pressing Factory is non-applicant No. 2. The employees are the applicants in the original Industrial dispute applications.
3. The applications filed by the applicants before the Labour Court at Nagpur are under [SECTION] of the [ACT] ("the said Act' for short). According to the applicants, they are the employees of non-applicant No. 2. The applicants in [CASE NUMBER] are employed after October 1971. The applicants in [CASE NUMBER] are employed prior to 1971. The material period is 1972 to 1980. The claims of all the applicants pertain to this period. In the application, the applicants contended that they were engaged by non-applicant No. 2 as watchmen/ jamadar in their Ginning and Pressing Factory, which was originally part and parcel of non-applicant No. 1. The management of both the plants was previously the same but in the year 1947/48 these two plants were made separate and the applicants were given employment in non-applicant No. 2.
4. The applicants contended that non-applicant No. 1 is a seasonal factory whereas, non-applicant No. 2 is a perennial factory. The wages and benefits payable to the employees engaged in non- applicant No. 2 is much low compared to the wages and dearness allowance and other benefits payable to the employees engaged in non-applicant No. 1.
5. Both the plants have boilers and chimneys. Boilers are fed by clask coal. Non-applicant No. 1, being a textile mill running perennially, essentially its coal consumption requirement is more than that of the seasonal factory of non-applicant No. 2. Near about 40 wagon loads of coal per month are required by the boilers of non-applicant No. 1 alone. The coal has to be unloaded from the railway wagons by the contractor's labour in the premises of non-applicant No. 1. This unloaded coal lying on the premises of non-applicant No. 1 is guarded by the applicants as per the instructions and directions of non-applicant No. 1.
6. The applicants further contended that the strength of watchmen of non-applicant No. 1 was much more in the year 1972. Due to the retirement/death/resignation of the employees their strength got (sic) reduced automatically. To bring the strength of the watchmen on the standard requirement or complement level, the new timely recruitment, is a must.
7. According to the applicants, from the year 1972, non-applicant No. 1 has adopted a very deceptive method of recruitment of workmen as watchmen. Instead of recruiting the watchmen directly on the mill muster, non-applicant No. 1, who has implied contract with non-applicant No. 2, posts the applicants on duty of guarding the coal of non-applicant No. 1 and other work under the direction, supervision and control of non-applicant No. 1. Thus the applicants, though nominally employees of non-applicant No. 2 are doing the duty of guarding the coal and are carrying out other work under the directions of non-applicant No. 1 from the year 1972. The grievance of the applicants, shortly stated, is that their strength is deceptively used for non-applicant No. 1 through non-applicant No.2.
8. It is further the case of the applicants that although non-applicant No. 1 and non-applicant No. 2 are separate factories under the [ACT] arid under the [ACT], their managerial relations are so governed that both are one and same. Both these companies are shown on record as separate companies for the purpose of monetary gain. The monetary gain is derived from the wages of the applicants. According to the applicants, non-applicant No. 1 has taken the services of the applicants from non-applicant No. 2 from the year 1972. However, non-applicant No. 1 is paying very meagre wages to the applicants. The role of non-applicant No. 2 is of an implied contractor of non-applicant No. 1. The applicants contend that such a practice is forbidden by law under the provisions of the [ACT]. The applicants contend that they are, therefore, the regular employees of non-applicant No. 1 from the year 1972 under [SECTION] of the [ACT] and non-applicant No. 1 is an employer of the applicants under [SECTION] of the [ACT]. The applicants are, therefore, entitled to the amount of difference of wages and other legal dues and benefits from non-applicant No. 1 from the year 1972 till date as detailed in the statement annexed to the Application.
9. The non-applicants have disputed the claim of the applicants. Non-applicant No. 2 admits that the applicants are working with it. However, the non-applicants have denied that the applicants are working for non-applicant No. 1. According to them, the applicants are not the employees of non-applicant No. 1 and hence they cannot claim any money from non-applicant No. 1 on that basis. It is submitted that these two establishments are separate and independent of each other. The basic contention of the non-applicants is that in the facts of the case, the claim of the applicants is not maintainable under [SECTION] of the said Act.
10. On these pleadings the parties led their evidence. The applicants examined themselves on oath. They also examined three independent witnesses. The non-applicants also examined their witnesses. After perusal of the evidence, the Labour Court came to the conclusion that the applicants had proved that they were performing the duties, for non-applicant No. 1. The Labour Court held that non-applicant No. 1 is a deemed employer of the applicants and hence the applicants are entitled to receive money from non-applicant No. 1. After undertaking some exercise as to how much work the applicants must have put in, the Labour Court came to the conclusion that the applicants had rendered services to non-applicant No. 1 for almost one month in a year by rotation and the Labour Court computed their claim accordingly and declared the amount the applicants were to recover from non-applicant No. 1. Being aggrieved by this award, the applicants as well as the non-applicants have preferred the present writ petitions.
11. I have heard at length Shri [ENTITY], learned counsel for the non-applicants and Shri [ENTITY], who has made his submissions on instructions from Shri [ENTITY], who appears for the applicants.
12. Since, in my opinion, the argument of Shri [ENTITY] that the Labour Court could not have dealt with the applications goes to the root of the matter, I propose to deal with it at the outset. In the view that I am taking it will not be necessary to deal with the other submissions advanced by the learned counsel.
13. Shri [ENTITY] contended that it is the case of the applicants that, though they are the employees of non-applicant No. 2, they are also doing work for non-applicant No. 1 and, as such, there exists a relationship of employer and employee between them and non-applicant No. 1. Shri [ENTITY] urged that in order to decide this issue, it was necessary to decide whether the establishments of non-applicant Nos. 1 and 2 constitute one undertaking and dispute of such kind could not be decided by the Labour Court under limited jurisdiction available to it under [SECTION] of the said Act. The nature of the dispute is such that it could have been adjudicated upon only by the Industrial Court on raising of the proper industrial dispute by following the prescribed procedure. Shri [ENTITY] further urged that in the facts of the present case, the Labour Court erred in going into this disputed question of fact. For this purpose, he has relied upon the judgments of the Supreme Court in [PRECEDENT], , [PRECEDENT], and the judgment of this Court in [PRECEDENT].
14. As against this Shri [ENTITY] has relied on the decision of the Allahabad High Court in [PRECEDENT] and the decision of this Court in [PRECEDENT]. He contended that under [SECTION] the Labour Court can certainly go into questions which are incidental to the main question. In the instant case, he submitted that the Labour Court has merely dealt with an incidental question and hence it cannot be argued that it had no jurisdiction to do so.
15. Having gone through the several judgments cited by the learned counsel appearing for both sides I am of the opinion that the Labour Court could not have gone into the dispute raised by the applicants. It was certainly not an incidental question. It will be necessary to have a look at the relevant provision of the said Act and some of the judgments cited before me to indicate what has persuaded me to take this view.
16. [SECTION] of the said Act reads thus:
"[SECTION] Recovery of money due from an employer:
(2) Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, be determined by such Labour Court as may be specified in this behalf by the appropriate Government and the amount so determined may be recovered as provided for in Sub-section (1)."
17. In [PRECEDENT], , the respondent was a supervisor in the [PRECEDENT]. The dispute related to the fixation of his salary in accordance with Sastry Award. He made an application to the Labour Court under [SECTION] of the said Act saying that he was entitled to claim certain benefits capable of being computed in terms of money under the Sastry Award. The appellant Bank had made wrong calculations in fixing his basic salary. He prayed that the benefit to which he was entitled by fixation of his basic salary correctly should be computed in terms of money and determined by the Labour Court. His application was opposed, inter alia, on the ground that it was not maintainable under [SECTION] of the said Act. It was argued that [SECTION] deals only with cases where the workman is entitled to receive from the employer any benefit which is non-monetary, but which could be computed in terms of money. Only in such a case where the workman claims a non monetary benefit, can he apply to the Labour Court for converting the value of his non monetary benefit into money and computing the amount due in terms of money. On the other hand it was contended that the benefit need not be non-monetary, and any benefit which a worker is entitled under an award if it requires computation, it can be the subject of an application under [SECTION] Of the said Act.
18. Upon consideration of [SECTION] and other relevant provisions the Supreme Court held that Sub-section (1) applies to cases where money is due under an award or settlement or under provisions of [SECTION] and that contemplates that the amount is already computed or calculated or at any rate there can be no dispute about the computation. Sub-section (2) applies to cases where though monetary benefit has been conferred under an award, it has not been calculated or computed in the award itself and there is dispute as to its calculation or computation. The Supreme Court concluded this basic controversy by saying that Sub-section (2) does not only apply to cases of non-monetary benefit which has to be converted in terms of money. While coming to this conclusion the Supreme Court made it clear that [SECTION] is a provision in the nature of execution proceedings and where the amount can be worked out without dispute [SECTION] will apply. But where the amount due to a workman is not stated in the award itself and there is dispute as to its calculation Sub-section (2) will apply and the workman would be entitled to apply thereunder to have the amount computed provided he is entitled to the benefit.
19. [PRECEDENT]'s case (supra), therefore, supports the argument that both, [SECTION] will apply only where right to receive the amount is not disputed. Under both these sub-clauses Labour Court acts only as an executing Court. Under [SECTION] it grants amount which is undisputed and under [SECTION] if there is dispute as regards calculations it sets it at rest by correctly calculating it. It cannot go into the disputed questions of facts regarding existence of right to receive the amount.
20. In [PRECEDENT], , the Supreme Court again dealt with this issue. The question before it was whether the Labour Court had jurisdiction to deal with the question as to whether the undertaking of the Company had been transferred to the Corporation and if so, whether the settlement of August 25, 1965 between the Company and the Union was binding on the Corporation. The second issue was whether employees who were parties to the said settlement were entitled to continue in the employment of the Corporation and if so what amount they were entitled to and whether said amount was recoverable from the Corporation. The third issue was whether 92 employees in list No. 11 who were parties to the said settlement were entitled to get compensation under [SECTION] of the [ACT] and if yes, what was the amount to which they were entitled.
21. The Supreme Court held that proceedings under [SECTION] are analogous to execution proceedings. It compared them to execution proceedings of a suit. It observed that in a suit a claim for relief made by the plaintiff against the defendant involves an investigation directed to 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. In execution proceedings liability of the defendant has to be worked out. The extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But the determination of the plaintiffs right and corresponding liability is not to be left to the execution proceedings. The Supreme Court made it clear that they are functions of a suit. The Supreme Court further held that since proceedings under [SECTION] are in the nature of execution proceedings, looking into the applicant's rights and the opponent's liability is outside the scope of the Labour Court's jurisdiction. In a given case, it may be necessary to determine the identity of the person against whom the claim is made if there is challenge. But that is merely incidental. It is only incidental question which can be gone into by the Labour Court and it cannot arrogate to itself functions, say of an Industrial Tribunal.
22. The Supreme Court went on to consider what is incidental. It held that in case of dismissal of a workman, Labour Court may find out whether the dismissal was Justified. But when the workman comes before the Labour Court for computation of his wages under [SECTION], he cannot ask the Labour Court to disregard his dismissal as wrongful and on that basis compute his wages. Determination as to whether dismissal was justified or not would be the principal matter for adjudication and computation of wages was consequent upon such adjudication. Determination of existing right is not what the Labour Court can take upon itself under [SECTION]
23. In [PRECEDENT]'s case (supra), while dealing with the Labour Court's jurisdiction under [SECTION], the Supreme Court, after taking a resume of several cases, held that 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 proceedings under [SECTION] of the said 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 powers under [SECTION] of the said 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 [SECTION] like that of the executing Court's power to interpret a decree for the purpose of its execution. The power of the Labour Court under [SECTION] extends to interpretation of the Award or settlement on which the workmen's right exists.
24. In [PRECEDENT]'s case (supra), the Supreme Court reaffirmed its view in [PRECEDENT]'s case (supra) and held that, the Labour Court is devoid of power and jurisdiction to adjudicate upon fresh claim or to give directions on that basis. It can only interpret Award and work out the wages payable to the workers in terms of the award etc.
25. In [PRECEDENT]'s case (supra), while considering somewhat similar question, this Court has held that [SECTION] postulates the existence of relationship of an employer and workman and the entitlement of a workman to certain benefits. The only dispute that can be decided by the Labour Court under this Section is in a very narrow compass i.e., computation of the amount that may be due. Where the very foundation is absent, the remedy provided to the workmen under [SECTION] cannot be availed of. The power of the Court in a proceeding under [SECTION] is in the nature of execution proceedings and, therefore, when a claim is made under [SECTION], that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself a power to make adjudication in the nature of determination which some other authority or Court is competent to do. Thus, where there is controversy regarding whether a person concerned was in the employment or not, the question of computing the reliefs will not arise.
26. Mr. [ENTITY] has made a valiant effort to counter the submissions of Mr. [ENTITY]. In my opinion, however, reliance placed by Mr. [ENTITY] on the judgment of the Allahabad High Court in Chandra Extrusion Products' case (supra) is totally misplaced. In that case, it was argued before the Allahabad High Court that claim for overtime wages cannot be adjudicated upon in an application under [SECTION] of the said Act. The High Court observed that it was not denied by the petitioner-Company that the workman had a right to get wages for the overtime work if done by him. Existence of right was not denied. The workman's claim was denied on the ground that as a fact, he had not worked overtime. The High Court observed that the question of determination of right was not involved in the case. There was no dispute in regard to the entitlement provided a workman has actually done overtime work. It is in the fact situation that the Allahabad High Court held, that the Labour Court was within its jurisdiction to entertain the application under [SECTION]. This judgment does not, in my opinion, lay down the law, that under [SECTION] disputed questions of fact as regards entitlement of a person to a right can be gone into by the Labour Court.
27. In [PRECEDENT]'s case (supra), a learned single Judge of this Court, [ENTITY], J. had before him an application filed by an employee on closure of the factory claiming closure compensation, notice pay and other dues under [SECTION] of the said Act. The contention was raised that the Labour Court has no jurisdiction to deal with such an application. Relying on the judgment of the Division Bench of this Court in [PRECEDENT] this Court held that when the question as to whether the employer and employee relationship exists is an incidental question, there are no fetters on the powers of the Labour Court to go into the said question. It was held thai the jurisdiction of the Labour Court under [SECTION] cannot be ousted by merely denying the relationship between the employer and employee. [ENTITY] was of the opinion that the judgment delivered by Dr. [ENTITY], J. in [PRECEDENT]'s case (supra) was per incuriam as it was delivered without noticing the judgment of Division Bench of this Court in [PRECEDENT], (supra).
28. It is, therefore, necessary to see what are the facts in [PRECEDENT]'s case (supra). In that case by a notification the Government had fixed the minimum wages payable to the employees in bidi making industry. The petitioner who owned a bidi factory declared its intention to close down the factory. The factory was closed temporarily from July 1958 till August 1958. Respondent No. 3 was not taken back on work after it was reopened. She applied to the Labour Court at Nagpur under [SECTION] of the said Act alleging that she was in the employment of the petitioner as a bidi binder. She claimed retrenchment compensation and notice pay.
29. The petitioner denied the claim. The petitioner inter alia contended that respondent No. 3 was binding bidies on contract basis as a piece rated worker and that there was no relationship of master and servant between the parties. The Labour Court had no jurisdiction under [SECTION] of the said Act to entertain the application of respondent No. 3. In the facts of that case the Division Bench observed that by enacting [SECTION], the Legislature wanted to provide for a speedy remedy to an individual workman working out his existing right. If on a mere raising of the objection by the employer that the employee who has filed an application under [SECTION] is not a workman, the Labour Court is divested of the jurisdiction vested in it under the provision, the very object of [SECTION] would be frustrated by the employer. The jurisdiction of the Labour Court cannot be ousted merely by disputing the status of the person invoking it. When the basic jurisdictional fact necessary for the exercise of the jurisdiction of the Labour Court is in issue, the question of status of the person applying under [SECTION] becomes an incidental matter and hence the Labour Court can inquire into that question.
30. Even in [PRECEDENT]'s case (supra), in the facts before him, the learned single Judge was of the view that the closure compensation was resisted by merely denying the employer-employee relationship, without giving better particulars or details. The said question was an incidental question. The learned Judge observed that the question whether employer-employee relationship exists or whether the applicant is a workman or not as defined under [SECTION] of the said Act can be incidental question.
31. In my opinion the above decisions can be reconciled. As observed by the Division Bench in [PRECEDENT]'s case (supra) [SECTION] intends to secure to the employees an expeditious recovery of their dues. If there is any attempt to oust the jurisdiction of the Labour Court by merely denying employer-employee relationship, then such an attempt must not be allowed to succeed. It is possible for every employer to raise frivolous pleas and drive employees to another spate of litigation. In such a case the Labour Court in its limited jurisdiction as an executing Court under [SECTION] can go into the said question as an incidental question. It will depend on facts and circumstances of each case.
32. In the recent judgments of the Supreme Court in [PRECEDENT]'s case (supra) and [PRECEDENT]'s case (supra), after considering several judgments of the Supreme Court some of which the Division Bench of this Court had considered in [PRECEDENT]'s case (supra), the Supreme Court has reiterated that the powers of the Labour Court under [SECTION] are like that of an executing Court and that where the entitlement of the workman to a certain benefit is disputed, there being no earlier adjudication thereof, the Labour Court cannot go into such a disputed question under [SECTION] of the said Act. The Supreme Court has held that such questions cannot be called incidental questions.
33. Whether a question is incidental or not would be essentially a question of fact and, in the facts of this case, I am not inclined to hold that the question as to whether there exists a relationship of employer and employee between the applicants and non-applicant No. 1 is an incidental question. The applicants have gone to the Court with the case that they are the employees of non-applicant No. 1 and their dues may be calculated accordingly This is denied by the non-applicants. In Written Statement running into several paragraphs the non-applicants have traversed the case of the applicants. Non-applicant No. 1 has clearly stated that the applicants were never engaged by them and there is no relationship of employer and employee existing between the two. It is specifically contended that non-applicant Nos. 1 and 2 are separate and distinct companies having different business and working conditions of the workers are different. Non-applicant No. 2 has not disputed that the applicants are employed with it. But it has denied that it was a part and parcel of non-applicant No. 1 and that their management was the same. The pleadings prima facie indicate that there is a genuine challenge to the basic right or entitlement of the applicants. In such circumstances, it is necessary to decide whether non-applicant Nos. 1 and 2 constitute one undertaking. Several disputed questions of facts are involved in this case which cannot be adjudicated upon by the Labour Court In applications under [SECTION]. Prima facie, it does not appear to be a case where jurisdiction of the Labour Court is sought to be ousted on a flimsy ground to deprive the applicants of their dues. An attempt to frustrate [SECTION] is not prima facie discernible. Therefore, In my opinion, the Labour Court clearly erred in passing the impugned award. The impugned award dated September 15, 1989 is, therefore, quashed and set aside. Consequently, [CASE NUMBER] and [CASE NUMBER] are allowed and [CASE NUMBER] and [CASE NUMBER] are dismissed. In the circumstances of the case, there shall be no order as to costs.