IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1922 of 2007. Reserved on: 1.08.2008. Decided on: 04.08.2008. Chairman Rajya Samaj Kalyan Salahakar Board & Another. … … Petitioners. Versus Darshna Devi. … … Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Petitioners: Mr. Narender Sharma, Advocate. For the Respondent: Mr. R.D. Kaundal, Advocate. Rajiv Sharma, Judge: The present petition is directed against the order passed by the learned Presiding Judge, H.P. Industrial Tribunal-cum-Labour Court, Dharamshala in case No.159 of 2002 dated 22.9.2006. The brief facts necessary for the adjudication of this petition are that respondent filed an application under Sub-Section (2) of Section 33-C of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act for brevity) in the Court of Industrial Tribunal-cum-Labour Court on 31.8.2002. She had stated before the Labour Court-cum-Industrial Whether reporters of local papers may be allowed to see the judgment? No. - 2 - Tribunal that she was engaged as Gram Sevika w.e.f. 14.7.1964 by the petitioner employer and she has superannuated w.e.f. 31.8.2001. Her case in nut shell was that she was not paid the arrears of pay in the revised pay-scale w.e.f. 1.1.1996 till her retirement. According to her she was entitled to Rs.5,73,440/- and was also entitled to encashment of 300 days unutilized leave which had been paid to her in unrevised rates and the difference came to Rs.50,000/-. The employer-petitioner filed a detailed reply to the application preferred by the workman. The case projected by the petitioner before the Labour Court was that the department did not fall within the definition “Industry” under Section 2(J) of the Act and the revised pay scale and arrears could only be paid on the receipt of grant-in-aid from the State Government. The Labour Court vide order dated 22.9.2006 directed the petitioners to pay the workman the arrears of the revised pay-scale w.e.f. 1.1.1996 with interest @ 6% per annum from the date of her entitlement till the entire amount was paid. The petitioners had assailed this order dated 22.9.2006. Mr. Narender Sharma has strenuously argued that the order dated 22.9.2006 is not sustainable in the eyes of law. He then contended that the learned Labour Court has overlooked the provisions of Section 33-C(2) of the Act. He further contended that the Labour Court could not entertain the claim petition since the same was not based on an existing right and the relief could only be determined/adjudicated upon by way of industrial dispute. Mr. R.D. Kaundal had supported the order dated 22.9.2006. I have heard the learned counsel for the parties and perused the record carefully. - 3 - What emerges from the pleadings of the parties is that the respondent (hereinafter referred to as the workman for convenience sake) was engaged as Gram Sevika w.e.f. 14.7.1964. She superannuated on 31.8.2001. She filed application before the Labour Court-cum-Industrial Tribunal on 31.8.2002 for the payment of a sum of Rs.6,23,440/-. The petitioners (hereinafter referred to as the employer for convenience sake) had filed separate replies to the application. The case set out by the employer in the reply was that the department was not an industry within the meaning of Section 2(J) of the Act and the revised pay-scale could be released to the workman only if the grant-in-aid was released by the State Government. I am of the considered opinion that the application preferred by the workman under Section 33-C(2) of the Act was misconceived. The learned Labour Court has lost sight of the provisions of Section 33-C(2) of the Act. It is settled law by now that what can be enforced under Section 33-C(2) is a pre existing benefit or one flowing from the pre-existing right. In the present case there is no prior determination whether the workman was entitled to revised pay-scale from 1.1.1996 or not. There ought to be pre-existing benefit for the enforcement of Section 33-(2) of the Act. The proceedings under Section 33-C(2) of the Act are in the nature of execution proceedings. The Labour Court under Section 33-C(2) only calculates the amount of money due to the workman from the employer or if the workman is entitled to any benefit which is capable of being computed in terms of money or proceeds to compute the benefit in terms of money. The amount sought to be computed must be an existing amount which had already been adjudicated upon either by way of settlement of award etc. It is not open for the Labour Court to determine - 4 - the amount first and then compute the benefits under Section 33-C(2) of the Act. Their Lordships of the Hon’ble Supreme Court have held in State of U.P. and Another versus Brijpal Singh, (2005) 8 SCC 58 as under:- “Thus, it is clear from the principle enunciated in the above decisions that the appropriate forum where question of back wages cold be decided is only in a proceeding before a forum to whom a reference under Section 10 of the Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference under Section 10 of the ID Act. Therefore, the Labour Court had no jurisdiction to adjudicate the claim made by the respondent herein under Section 33-C(2) of the ID Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent workman cannot ask the Labour Court in an application under Section 33-C(2) of the ID Act to disregard his dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments of Mrs. Shyamla Pappu that the respondent workman can file application under Section 33-C(2) for determination and payment of wages o the basis that he continues to be in service pursuant to the said order passed by the High Court in Writ Petition No.15172 of 1987 dated 28-10-1987. The argument by the learned counsel for the workman has no force and is unacceptable. The Labour Court, in our opinion, has erred in allowing the application filed under Section 33-C(2) of the ID Act and ordering payment of not only the salary but also bonus to the workman although he has not attended the office of the appellants after the stay order obtained by him. The Labour Court has committed a manifest error of law in passing the order in question which was rightly impugned before the High Court and erroneously - 5 - dismissed by the High Court. The High Court has also equally committed a manifest error in not considering the scope of Section 33-C(2) of the ID Act. We, therefore, have no hesitation in setting aside the order passed by the Labour Court in Misc. Case No.11 of 1993 dated 23-8-1995 and the order dated 9-1-2002 passed by the High Court in CMWP No.36406 of 1995 as illegal and uncalled for. We do so accordingly.” This judgment has been considered by their Lordships of the Hon’ble Supreme Court in U.P. State Road Transport Corporation versus Birendra Bhandari (2006) 10 SCC 211. In view of the definite law laid down by their Lordships of the Hon’ble Supreme Court in the above cited cases, the application preferred by the workman in the present form was not maintainable under Section 33-C(2) of the Act before the Labour Court-cum-Industrial Tribunal. The learned Labour Court has erred in law by entertaining and adjudicating upon the application. The order dated 22.9.2006 is without jurisdiction. Consequently, the writ petition is allowed. The order dated 22.9.2006 passed by the Labour Court in Application No. 159 of 2002 (RBT No.258 of 2004) is quashed and set aside. No costs. August 04, 2008. (Rajiv Sharma) (sck). Judge.