THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Dated this the 13th day of November 2009. Writ Petition No. 12321 of 1998 Between: The General Superintendent, P.W. Workshop, Seethanagaram. ……Petitioner vs. 1.A.Chandramma and two others. ……Respondents. THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No. 12321 of 1998 ORAL ORDER: This writ petition is directed against the order passed by the Labour Court, Gntur in M.P.No. 74 of 1991 instituted by the respondents 1 and 2 herein. By an order dt. 26.11.1996 while entertaining an application moved under Section 33 C (2) of the I.D. Act by the respondents 1 and 2 herein claiming a sum of Rs. 64,700/-, the Labour Court allowed the said petition and directed the respondent No.1/writ petitioner herein to pay a sum of Rs. 32,350/- to each of the petitioners before the Labour Court. The case of the respondents 1 and 2/workmen is that they joined as Sweepers in the Public Works Department and with effect from 1.9.1985 they were discharging the duties of Sweepers. Prior to that, the petitioners had worked as Water women, in the contingent posts during the summer times for the purpose of making available the drinking water for all concerned. The respective spouses of the respondents 1 and 2/workmen were in fact employed in Public Works Department and they died while in employment, leaving the respondents 1 and 2 herein and their children as dependants. Therefore on compassionate grounds, the respondents 1 and 2 herein came to be appointed as Sweepers with effect from 1.9.1985. The grievance of the respondents 1 and 2 is that full wages as prescribed under G.O.Ms.No. 235 dt. 11.9.1977 and G.O.Ms.No. 288 dt. 12.11.1986 are not paid to them. It is their claim that initial scale of pay of Rs. 290-425 was revised to Rs. 740-1180 respectively. It is also their case that Smt.Dhanamma and Smt.Prabhavathi who came to be appointed in the month of August 1990 on compassionate grounds were paid their monthly wages in contrast to the wages paid to the respondents 1 and 2/workmen. The writ petitioner has resisted their claim by pointing out that the State Government has taken a policy decision in G.O.Ms.No. 143 dt. 16.3.1984, specifically that there shall not be any appointments made on N.M.R. basis under any circumstances in as much as all the said NMR workers who have completed five years of service from the date of their initial engagement as such will be eligible for conversion to work charged establishment. It was further stated that notwithstanding the ban imposed by the State Government, the respondents 1 and 2 herein came to be engaged as Sweepers on daily wage basis from 1.9.1985 taking a compassionate route in the matter. The action of appointing and engaging the respondents 1 and 2 herein was subject to ratification by the State Government and in fact the State Government has not passed any orders for their engagement. It was further pointed out that the petitioners have given their consent to forego NMR service as water women subject to their being engaged as Sweepers. Hence, their cases were considered to be appointed in the work charged establishment and subsequently they were paid their wages in the scale of pay of Rs. 740-1150. The wages in the said scale of pay werepaid to the 1st respondent with effect from 21.11.1990 and to the 2nd respondent with effect from 13.12.1990. It was further pointed out that the respondents 1 and 2 never made any protest in this regard. It was further pointed out that there was no objection made with regard to the entitlement of the respondents 1 and 2 to receive their scale of pay, any time prior to their being appointed in work charged establishment upon completion of five years of service by them in terms of policy decision announced by the State Government through G.O.Ms.No. 140 dt. 16.3.1984. Therefore their claim for payment of Rs. 32,350/- was resisted. As was already noticed, the Labour Court upon considering all the material that was brought before it came to the conclusion that the ban imposed on recruitment of employees on NMR basis would not in fact come in the way of the respondents in paying such NMR employees in accordance with the time scale. Therefore, it has come to the conclusion that the differential amount between what was paid and what was entitled to be paid to them prior their being brought to the work charged establishment is ordered to be paid. I have heard the learned Assistant Government Pleader for Irrigation and Sri.K.Suresh Reddy, the learned Counsel for the respondents 1 and 2. The learned Assistant Government Pleader would submit that the respondents 1 and 2 are not entitled to be paid their wages in the scale of pay attached to the regular post until and unless they are brought to the work charged establishment. She further contends that such of those employees who were engaged on NMR basis or as contingent employees, they will only be paid appropriate daily wages. The scale of pay attached to a post will be available to the employees appointed against a regular post either on temporary or permanent basis that too after following the normal procedure for recruitment or to such of those persons who have been brought to the work charged establishment upon satisfactorily completing five years of service on NMR basis. The State Government as a policy measure extended payment of their salary and allowances in the scale of pay attached to the posts. Therefore, the entitlement for receiving wages in the regular scale of pay attached will be available to the respondents only after they satisfactorily completed five years of service. She further contends that ordering the payment for the period preceding their being brought to the work charged establishment is unsustainable. The learned AGP also contends that the respondents 1 and 2 having accepted the terms of appointment and engagement initially on NMR basis and subsequently on work charged establishment, they cannot turn round and claim differential wages by approaching the Labour Court. Further, she contends that a claim for payment of these monies, cannot for the first time, be made in an application moved under Section 33-C (2) of the I.D. Act. The learned Counsel for the respondents 1 and 2 submits that the respondents 1 and 2 are appointed in accordance with the policy of the State to offer employment to at least one of the dependants of the deceased Government servants as a measure of providing immediate relief to such of those Government servants who died in harness. In the instant case, the respective spouses of the respondents/workmen while working with the PWD of the State Government died leaving behind their family in harness. Hence, the respondents 1 and 2 solicited and both of them have been appointed on compassionate grounds. It is therefore accepted that they should be appointed in posts, which carry a scale of pay. The lowest post has been assigned the scale of pay of Rs. 290-425, which stood revised later on to Rs. 740-1150. Therefore, he seeks to sustain the claim. The learned Counsel would further submit that the entitlement of the workmen is based upon the policy measure of the State Government and hence there cannot be any dispute raised in that regard, in the present writ petition. I have given my anxious consideration to rival submissions. Section 33-C has been introduced into the I.D. Act for the exclusive purpose of securing the recovery of money due from an employer. Sub-section (2) of Section 33-C entitles any workman to receive from his employer any money due or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due, such question has to be decided by the Labour Court and hence the Labour Court has got jurisdiction to entertain any claim for any money due to a workman. One important question to be answered is as to whether the workman concerned is really entitled to receive money due or such an entitlement itself is liable to be adjudicated upon for the first time now. If the entitlement itself is liable to be adjudicated for the first time, an application under Sub- section (2) of Section 33-C of the I.D. is not the appropriate one to lie before the Forum. No such application for determining the entitlement can be entertained under Section 33-C(2) of the I.D. Act. Therefore, the entitlement of the workman must be a pre- existing or pre-determined right in that respect. In other words, a pre-existing right of a workman to receive money or any other benefit, which is capable of being computed in terms of money, can be got enforced by invoking the power available under Sub- section (2) of Section 33-C of the I.D. Act. Therefore, Section 33-C (2) of the I.D Act is analogous or akin to the proceedings for execution of a decree passed by a Civil Court. Like the executing court, which it can interpret a decree for the purpose of executing it, the Labour Court is also entitled to interpret the claim of entitlement, when it is per se not in dispute. Beyond that it cannot adjudicate, for the first time, the entitlement of the workman. Unfortunately, this distinction does not appear to have been born in mind by the Labour Court while passing the orders in M.P.No. 74 of 1991. But however, the fact remains that the writ petitioner herein has already deposited a sum of Rs. 32,350/- on 18.5.1998 and the respondents 1 and 2 are continuing in service. It would cause grave hardship now to remit the matter back for fresh consideration by the Labour Court. Both sides will have difficulty in marshalling evidence particularly after 19 years have passed away. Therefore, the competing claims are required to be balanced. Since 50% of the amount awarded by the Labour Court i.e. Rs. 32,350/- was already deposited by the writ petitioner herein, it would be appropriate that the respondents 1 and 2 herein should be permitted to withdraw the same in equal measures and that would be in full and final settlement of their entitlement. This measure has been adopted only with a view to give quietus to this old litigation, instead of prolonging it. With the above direction, the writ petition is disposed of. No order as to costs. ______________________________ NOOTY RAMAMOHANA RAO,J 13.11.2009. Krb. THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No. 12321 of 1998 Dated this the 13th day of November, 2009.