( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3940 OF 1996 Maharashtra Education Society, Udgir .. Petitioner Through – The Secretary, Shri Manmathappa Shivrudrappa Nila, Age. 72 years, Occ. Advocate, Resident of Udgir. Versus 1. Sopan Shivram Suryawanshi .. Respondents Age. 32 years, Occ. Labour, R/o. Udgir, Dist. Latur. 2. The learned Labour Judge, at Latur. Shri V.G. Sakolkar, Advocate for the petitioner. Shri S.S. Shinde h/f. Shri V.G. Shelke, Advocate for respondent No.1. CORAM : P.R. BORKAR,J. DATED : 30.09.2009 ORAL JUDGMENT :­ 1. This writ petition is filed by the employer being aggrieved by the order passed by the Presiding Officer, Labour Court, Latur, in I.D.A. No. 167 of 1993, decided on 21.12.1995, whereby the present petitioner was directed to ( 2 ) pay difference of actual wages paid and minimum wages applicable for period from 01.01.1982 to 30.05.1989. In­ fact, the Labour Court has given three different periods one from 01.01.1982 to 31.12.1984, second from 01.01.1985 to 31.12.1987 and third from 01.01.1988 to 30.05.1989, for which difference in wages are to be calculated and paid. Order is passed under 33­C(4) of the Industrial Disputes Act, 1948 (for short “the I.D. Act”). 2. Some of the facts giving rise to this petition may be stated as below:­ . According to respondent No.1 – Sopan Suryawanshi, he worked as an agricultural labourer from 1982­84 for two years on monthly salary of Rs. 250/­. During that period agricultural labourer was getting Rs.18/­ per day and therefore, respondent No.1 is entitled to get difference of Rs.6960/­. Respondent No.1 further stated that he was working on building construction for two years and was getting Rs. 750/­ per month. During that period a construction worker was getting Rs. 20/­ per day and so he is entitled to difference of Rs. 12,600/­. It is further ( 3 ) alleged that thereafter from 1987 onwards he was working as watchman on monthly salary of Rs.300/­ but he was entitled to pay­scale of Rs.200/­ ­ 280/­ and should have got total Rs. 750/­ per month. So, he was entitled to difference of Rs. 450/­ per month for 1987­88. He further stated that from 1989 onwards he was entitled to wages of Rs. 1250/­ per month and thus to difference of Rs.950/­ per month. So, total claim of Rs. 84,060/­ was filed under Section 33­C(2) of the I.D. Act. 3. Present petitioner filed written statement at Exh. 12 and stated that for initial period of two years from 1982, respondent No.1 was paid Rs.10/­ per day. It was a land given to Social Forestry and just to accommodate the applicant even though there was no work of agriculture, he was paid said amount for watering plants in earthen pots. That was from 01.04.1988 to 30.04.1989. It is further stated that between 1982 to 1984, the applicant was paid Rs. 250/­ per month as per terms and conditions of contractual obligation. It is denied that he was entitled to any difference and rates of agricultural labouer were Rs. 18/­ per day. It is further stated that during the year 1985­86, ( 4 ) recitals in the application filed by respondent No.1 itself show that he was getting Rs. 750/­ per month, which in­fact it was Rs. 20/­ per day. It is further stated that the application is not tenable. The claim of the applicant for difference in wages was denied. It is said that on 01.05.1989 the applicant has abandoned services and he was no more in service from that day. 4. As a development pending this petition it is stated that respondent No.1 had filed Complaint U.L.P. No. 33 of 1989 for reinstatement. The application was allowed on 19.06.1993. As against the same present petitioner filed revision application No. 29 of 1989 in the Industrial Court, Solapur and obtained stay to the back wages. Subsequently, said revision application was allowed and the matter was remanded for fresh trial to the Labour Court. Thereafter, said U.L.P. No. 33 of 1989 came to be dismissed and as such the decision of dismissal of the U.L.P. was upheld by Court in 2004. So, admittedly from 30.04.1989 onwards the respondent No.1 was not in the employment. 5. The learned advocate for the respondent No.1 stated ( 5 ) that in view of dismissal of Complaint U.L.P.No.33 of 1989, this petition is no more tenable. However,if respondent No.1 is entitled to minimum wages for a period for which he had worked, said difference cannot be denied even accepting that there was valid termination of his services as upheld by the Labour Court while deciding complaint U.L.P.No. 33 of 1989 in the year 2004. 6. The learned advocate for the petitioner Shri Sakolkar mainly argued that application under Section 33­C(2) is not tenable as there were disputed questions of fact which could not have been considered by the Labour Court. He relied upon several authorities. First is Shri Saptashrung Niwasini Devi Trust Sevakanchi Pat Sanstha Ltd., V/s. Nandkumar Motiram Chitte and anr. in Writ Petition No. 7342 of 2008, decided by this Court on 01.12.2008. Therein, in para 6 it is observed that proceedings under Section 33­C(2) are in the nature of execution when the right on the basis of which the claim has been preferred is an established right. He argued that in the present case the petitioner is an educational institution and appointment of present respondent No.1 was for some time as an agricultural labourer, then for ( 6 ) some time as a worker on construction of building and then as a Watchman. Education Institution would not be coming under the definition of ‘industry’. Agriculture or construction could be at most peripheral activity. He referred to case of Bangalore Water Supply & Sewege Board V/s. A. Rajappa & Ors., 1978 (36) F.L.R. 266, which has defined ‘industry’. 7. In my considered opinion, whether respondent No.1 would come under definition of ‘workman’ within meaning of Section 33­C, will have to be examined before it can be said that the Labour Court had jurisdiction to entertain application under Section 36­C. It is not that the petitioner’s activity was accepted as an industry or held to be an industry. So, it was a question of fact in dispute. Therefore, the question will arise whether the Labour Court has jurisdiction to decide application under Section 33­C(2). On this point, Shri Sakolkar also relied upon decision of this Court in Mukund Nana Edke V/s. Dainik Gavkari and anr. in Writ Petition No. 2206 of 2008, decided on 27.11.2008. Therein also in para 6 this Court observed that it is settled law that jurisdiction of the Labour Court under Sec. 33 C [2] of the Act is very limited. Unless a party applying before ( 7 ) the Court has a pre­existing on pre­adjudged right, the proceedings under Sec.33­C(2) of the Act are not tenable. 8. Reliance was also placed on the case of Executive Engineer, Jeypore Electrical Division and ors., V/s. Presiding Officer, Labour Court and anr., 1999 LAB.I.C.1356. It is observed therein that Section 33­C of the I.D. Act is a proceeding in the nature of execution. Where the amount to be executed is to be worked out or where it may be worked out without any dispute, Section 33­C(1) will apply. But where the amount due to a workman is not stated in the award itself and there is a dispute as to its calculation, sub­section (2) will apply and the workmen would be entitled to apply thereunder to have the amount computed provided that he is entitled to a benefit, whether monetary or non monetary, which is capable of being computed in terms of money. While inquiring into the question as to the existence of such a right and construing the award, the Labour Court can look into the demands by the workmen in order to ascertain whether the award under which the right is claimed was or was not beyond the scope of the demand. However, the Labour Court cannot arrogate to itself the functions of an Industrial ( 8 ) Tribunal which is entitled to adjudicate matters governed/covered under Section 10(1) and to decide the rights of a workman or the existence of a liability on the part of the employer. 9. The learned advocate for respondent No.1 cited case of Sarana Tukaram Dendo V/s. Shetkari Sahakari Sakhar Karkhana Ltd., & Anr., 1982(1) Bom.C.R.28 to show that co­ operative society can be held to be an industry and secondly the Labour Court can consider whether provisions of the Minimum Wages Act applied ipso facto. 10. He also relied upon case of Municipal Council, Achalpur V/s Shaikh Rahim Shaikh Rustam and ors., 1984 BCI 102. In that case, it is held that application under Section 33­C(2) of the I.D. Act is maintainable, even though some relief is claimed under Section 20 of the Minimum Wages Act, 1948. In that case question raised was whether provisions of Section 20 of the Minimum Wages Act, 1948, regarding settlement of claims provide the exclusive remedy in super session of that provided by section 33­C(2) of the I.D. Act, 1947, regarding recovery of money due from an employer. In ( 9 ) that case, the employer was Municipal Council. It was question regarding computing rest days. 11. In the facts and circumstances of the case, in my opinion, petition under Section 33­C(2) of the I.D. Act would not have been maintainable. There are disputed questions of fact. In­fact, the Labour Court did not decide the actual amount payable and it left the same to be worked out by the parties. He has not stated that for particular period the respondent No.1 was paid particular amount as wages and that he was entitled to particular amount as minimum wages. So, the order of the Labour Court itself shows that there were disputed questions of fact and it could not just compute the amount payable. 12. Adv. Shri Sakolkar argued that the application was wrongly entertained under Section 33­C(2) of the I.D. Act and appropriate remedy was to file proceedings under Section 20 of the Minimum Wages Act. 13. At this stage Adv. Shri Shinde argued that the authority under the Minimum Wages Act to decide claim is the ( 10 ) same Labour Court, Latur and the Labour Court could have considered the application under Section 33­C(2) of the I.D. Act as one under Section 20 of the Minimum Wages Act. 14. Considering the fact that admittedly respondent No. 1 has worked under the petitioner till his dismissal on 30.04.1989, in the interest of justice, instead of directing the respondent No.1 to file another application under Section 20 of the Minimum Wages Act, it is desirable that the matter should be remitted back to the Labour Court, directing it to consider the application of respondent No.1 as one under Section 20 of the Minimum Wages Act, 1948, and decide the same as an Authority under the said Act. 15. In the result, the order passed by the Labour Court, Latur, dated 21.12.1995 in I.D.A. No. 167 of 1993 is hereby set aside. The Court is directed to register the application filed by present respondent under Section 33­C(2) of the I.D. Act as one under Section 20 of the Minimum Wages Act, 1948 and treat the application filed under said Act and decide it afresh in accordance with law. The parties are at liberty to adopt their pleadings and evidence before the ( 11 ) Labour Court. The parties are also at liberty to lead further evidence and/or recall any of the witnesses already examined. 16. The writ petition is accordingly allowed. Rule made absolute. [P.R. BORKAR,J.] snk/2009/SEP09/wp3940.96