THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.20751 OF 1997 17TH FEBRUARY 2010. BETWEEN: THE ASSISTANT PROVIDENT FUND COMMISSIONER, SHANKARAPURAM, CUDDAPAH .. PETITIONER AND THE INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ANANTAPUR & OTHERS .. RESPONDENTS THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.20751 OF 1997 O R D E R : The order under challenge in this writ petition is the order of the Industrial Tribunal Cum Labour Court, Anantapur, in M.P.NO.67 of 1993 dated 28.10.1996 a petition filed under section 33(C) (2) of the Industrial Disputes Act, at the behest of the legal heirs of late Sri Narasaiah, seeking a direction to the petitioner and the 3rd respondent herein to pay Rs.15,099-60 paise with interest. The 2nd respondent –workman was a watchman with the 3rd respondent and was admitted to the family pension scheme vide P.F.A/c.No.A.P.5573/192. He died on 12.1.1991. It is the case of his widow that she is entitled for family pension at Rs.503-50 ps., per month from 12.1.1991 to 12.7.1993. The 3rd respondent herein contended before the Labour Court that the deceased-workman had resigned from service prior to his death on 18.12.1990 vide his letter dated 9.12.1991 and claim form No.20. On his death, Rs.8,423/- was paid to the petitioner and Rs.8,4222/- was paid to the employee’s mother and, in addition, Rs.1,657/- was paid to the petitioner towards withdrawal benefits payable under the Employees Family Pension Scheme, 1971. The Industrial Tribunal cum Labour Court, Anantapur examined the genuineness of the letter dated 9.12.1991. The Tribunal noted that, while the original resignation letter was produced, the wage registers were not, necessitating an adverse inference being drawn that the deceased-workman had been on leave for two months on account of his illness and that he could not have visited the factory to submit his resignation. The Tribunal observed that there was no proof that the workman had signed the resignation letter and the contention that the deceased-workman had resigned before his death could not be accepted. Sri.R.N.Reddy, learned Standing Counsel appearing on behalf of the Provident Fund Commission, would challenge the order of the Tribunal on two grounds; firstly that the order suffers from perversity; and secondly that these disputed questions of fact, as to whether or not the workman had resigned prior to his death, could not be examined in proceedings under section 33(C) (2) of the Industrial Disputes Act but could only have been agitated in proceedings under Section 2(A)(2) of the Industrial Disputes Act. The first contention necessitates rejection. It is not for this court in proceedings under Article 226 of the Constitution of India to sit in judgment over the findings recorded by the Tribunal. The deceased-workman’s wife let in evidence, and in the absence of any evidence being let in to the contrary, either by the petitioner or the 3rd respondent, the only evidence available on record was the deposition of the deceased-workman’s wife and an inference drawn therefrom cannot be characterised either as perverse or as based no evidence. The second contention, however, is well conceived. It is well settled that proceedings under Section 33(C) (2) of the Industrial Disputes Act are akin to execution proceedings. In "Central Inland Water Transport Corporation Ltd. v. The Workmen"[1], the Supreme Court observed: “…… In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the 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. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination no. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33C (2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33C (2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'incidental' To call determinations (i) and (ii) 'incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33C (2), that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself function - say to an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'incidental' to its main business of computation. In such cases determinations (i) and (ii) are not 'incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. L. Khandelwal, (1968) 2 Lab LJ 589 (SC), that a workman cannot put forward a claim in an application under Section 33C (2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an Industrial Dispute which requires a reference under Section 10 of the Act. ……” The right of the 2nd respondent to claim the benefits of the family pension scheme would arise only if her husband had remained in service as on the date of his death. The question as to whether or not the 2nd respondent’s husband had died while in service, or had resigned prior to his death, is a matter which involves examination of the 2nd respondent’s right to the relief and the corresponding liability of the petitioner and the 3rd respondent including as to whether they were at all liable or not. These are matters which could not have been gone into in execution proceedings under Section 33(C) (2) of the Industrial Disputes Act. The Tribunal had exceeded its jurisdiction in examining the question as to whether or not the 2nd respondent had died while in service or had resigned prior thereto. The order of the Tribunal must, therefore, be and is, accordingly, quashed. The writ petition is allowed. However, in the circumstances, without costs. _______________________________ ( RAMESH RANGANATHAN, J ) 17th February, 2010. tnb THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.20751 OF 1997 17TH FEBRUARY 2010. [1] AIR 1974 SC 1604