THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.13858 of 1997 DATED:06.02.2008 Between: The Taluk Coop. Officer and others. …Petitioners And Md.Fareeuddin and another. ..Respondents. THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.13858 of 1997 ORDER: Heard the learned Government Pleader for Agriculture and Co-operation. Neither Sri B.Sudhakar Reddy, learned counsel for the first respondent, is present, nor is there any representation on his behalf. The order of the Industrial Tribunal-cum-Labour Court, Warangal in M.P.No.80 of 1993 dated 28.10.1996, is questioned in this Writ Petition. The first respondent herein was working as an Attender in the Taluk Co-operative Office, Madhira, from 1963. He filed an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short “the Act”), before the Industrial Tribunal-cum-Labour Court, Warangal, claiming a sum of Rs.78,338/- along with interest at 12% per annum. He contended that he had fallen sick and had applied for medical leave with effect from 03.10.1979, that later he had applied for invalid pension on 10.11.1979 requesting the petitioner herein for sanction of pension or gratuity, that the petitioner had neither confirmed receipt of the application, nor had they paid the pension or gratuity in spite of his persuasion, that a notice was issued to him on 16.10.1986 asking him to show cause as to why his services should not be terminated, a copy of which was acknowledged by him on 28.10.1986, that he had later submitted a detailed explanation to the said notice informing that he was not absent as alleged in the notice for a period of five years, but had been waiting for sanction of pension or gratuity, whichever he was entitled to and that later he had expressed his willingness to resume duty. The first respondent claimed to have again sent a reminder on 20.12.1988 requesting permission to join duty. On the ground that the petitioner herein had not taken him back to duty, nor paid him salary or gratuity for the period of service rendered, the first respondent claims to have sent a legal notice on 01.12.1992 claiming full salary for the period from 20.12.1988 till 11.10.1993. According to the respondents though he informed the petitioner of his willingness to resume duty on 20.12.1988, the petitioner had not taken any action, and hence, the petitioner herein was liable to pay full salary of Rs.78,338/- with interest at 12% per annum from 20.12.1988 to 11.10.1993. The petitioner invoked the jurisdiction of the Industrial Tribunal under Section 33-C(2) of the Act. In its counter-affidavit filed before the Industrial Tribunal, the petitioner herein contended that the Taluk Cooperative Office, Madhira, was no longer in existence, that it was abolished with effect from 01.09.1986, that the petitioner was governed by the A.P.Last Grade Service Rules , APCS (CC&A) Rules, 1991, A.P.Leave Rules, 1933 and A.P.Pension Rules, 1980, which were exclusively for Class- IV employees of the State Government service, that the petition filed by the first respondent herein is not maintainable and that the Industrial Tribunal had no jurisdiction to decide the case. The Industrial Tribunal rejected the contention of the petitioner herein that the petition was not maintainable. It noted that the first respondent had examined himself as W.W.1 and had marked Exs.W.1 to W.11, that the first respondent had worked as an Attender in the Cooperative Office from 1963 till 1979, that he had gone on medical leave and had applied for invalid pension as he was sick, that he had subsequently fallen sick for five years and was not paid any amount and thereafter a memo was served on him in Ex.W.1, which he had replied by letter in Ex.W.2, dated 05.11.1986. The Industrial Tribunal held that, as per the oral and documentary evidence placed on record by the first respondent-workman, it was evident that he had applied for invalid pension, that the petitioner neither agreed to pay his pension nor was he paid the benefits inspite of the workman’s request on several occasions, that the petitioner had not even chosen to give reply to the legal notice and that, except the counter-affidavit, there was no rebuttal evidence adduced by the petitioner herein. While rejecting the first respondent’s claim for interest, the Industrial Tribunal directed the petitioner to pay Rs.78,338/- to the first respondent. Before this Court, learned Government Pleader for Agriculture and Co-operation would contend that proceedings under Section 33- C(2) of the Act are in the nature of execution proceedings and it is only when the workman has an accrued right in his favour, or his entitlement for payment of the amount claimed has already been determined, that an application could be filed under Section 33-C(2) of the Act claiming computation of the monetary benefits to which the workman was entitled to. Learned Government Pleader would place reliance on the judgments of the Supreme Court in State of U.P. v. Brijpal Singh[1], Municipal Corporation of Delhi v. Ganesh Razak[2], Tara v. Director, Social Welfare[3] and U.P.State Road Transport Corporation v. Shri Birendra Bhandari[4]. In Ganesh Razak, daily-rated/casual workers of the Municipal Corporation, Delhi, claimed wages on par with regular employees contending that they were discharging similar duties and were therefore entitled for payment on the principle of “equal pay for equal work”. They sought computation of arrears of their wages at the rate at which wages were paid to regular employees in accordance with Section 33-C(2) of the Act. An order was passed by the Labour Court in their favour accepting their claim. The writ petitions filed challenging the said order were dismissed. The Municipal Corporation, Delhi, then approached the Supreme Court by Special Leave. It is in this context that the Supreme Court, following its earlier judgment in Central Inland Water Transport Corporation Limited v. Workmen[5], observed: “……….The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates 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 a proceeding under S. 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 Section 33-C(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 Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution. In these matters, the claim of the respondent- workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of 'equal pay for equal work' being disputed, without an adjudication of 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 Section 33-C(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 to the benefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the writ petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents………….” In Brijpal Singh, the Supreme Court held: “……………It is well settled that the workman can proceed under Section 33-C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages Pvt. Ltd. v. Suresh Chand, (1978) 2 SCC 144 held that a proceeding under Section 33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. This Court further held as follows : "It is not competent to the Labour Court exercising jurisdiction under Section 33C (2) to arrogate to itself the functions of an industrial tribunal and entertain a claim 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 Act." Thus it is clear from the principle enunciated in the above decisions that the appropriate forum where question of back wages could be decided is only in a proceeding 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 I. D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33C (2) of the I. D. 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 33C (2) of the I. D. 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. Shymala Pappu that the respondent-workman can file application under Section 33- C(2) for determination and payment of wages on 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 I. D. 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 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 I. D. Act…………..” In Tara, the Supreme Court held that in cases where the status and nature of employment was itself disputed and unless there is a prior adjudication on merits of the status which is the foundation for making the claim for wages at the specialized rates, the question of moving an application under Section 33-C(2) of the Act for computation of the wages did not arise. Similarly, in U.P.State Road Transport Corporation, the Supreme Court observed that the benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right and the difference between a pre-existing right or benefit on the one hand and the right or benefit which is considered just and fair on the other hand is vital, that while the former falls within the jurisdiction of the Labour Court exercising powers under Section 33-C(2) of the Act, the latter did not. Since the adjudication of the workman’s entitlement for the amount claimed by him is a pre-requisite for a petition under Section 33-C(2) of the Act, where his very entitlement is in question an application under Section 33-C(2) of the Act is not maintainable. In the present case, it is not in dispute that the first respondent – workman was absent for a period in excess of five years. While it is his case that he went on medical leave, he does not even contend that such leave was sanctioned. Whether such an employee, who had abstained from duty for more than five years, was automatically entitled to join duty for the mere asking was a question which the Industrial Tribunal had to adjudicate upon, and it is only if the question whether the first respondent has the right to rejoin service has been determined in his favour, would the question of his being entitled for arrears for the period from when he sought permission to rejoin duty till the date of filing of the application under Section 33-C(2) of the Act, arise. Since the first respondent’s right to rejoin duty after remaining absent for a period in excess of five year has not been adjudicated upon, the Industrial Tribunal-cum-Labour Court lacked the jurisdiction to compute the benefit, which the workman claims to be entitled to, under Section 33-C(2) of the Act. Since the order of the Industrial Tribunal suffers from an inherent lack of jurisdiction, the order impugned must be quashed. The Writ Petition is, accordingly, allowed. However, in the circumstances, without costs. __________ 06.02.2008 GJ [1] (2005) 8 SCC 58 [2] (1995) 1 SCC 235 [3] AIR 1999 SC 1508 [4] AIR 2006 SC 3220 [5] (1974) 4 SCC 696