1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.2282/1996 (Union of India & Ors. Vs. Kesarichand & Anr.) Date of order : January 16th, 2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Ravi Bhansali, for the petitioners. Mr. D.K. Parihar, for the respondent No.1. By way of filing the present writ petition, the Union of India has challenged the order dated 4.1.1995 passed by Judge, Labour Court, Bikaner Jaipur in Labour Dispute Case No.3/89 whereby the Judge, Labour Court, Bikaner has passed an order for payment of Rs.14,854.72 paisa in favour of the respondent No.1 and it was ordered that the said amount may be paid within a period of three months failing which the claimant will be entitled for 10% interest on the said amount. According to the facts of the case, the respondent No.1 filed two claim applications under Section 33-C (2) of the Industrial Dispute Act, 1947 (hereinafter “the Act” only) bearing Nos.3/89 and 2 4/1992. Case No.4/92 was consolidated with the consent of the parties with case No.3/89 and after 24.4.1993, all further proceedings were done in case No.3/89. The Judge, Labour Court has decided both the applications by a common order dated 4.1.1995. The respondent No.1 stated in his claim application No.3/89 that he is entitled for the kilometer allowance at the rate of Rs.28.25 for 100 kilometers, total amounting to Rs.1119.26 and Rs.75/1 as duty allowance for the period of 4.9.1987 to 20.9.1987. It was further prayed that the salary for the period from 7.9.1987 to 17.9.1987 may also be paid because on account of deliberate non-booking by the petitioners to the tune of Rs.1082.77 for which he was legally entitled. Before, the Judge, Labour Court, a reply was filed by the petitioner while denying and refuting the facts as alleged in the claim and it was submitted that the Labour Court has no jurisdiction to adjudicate upon the entitlement while exercising power under Section 33-C (2) of the Act. Therefore, no relief can be granted to the claimant under Section 33-C (2) of the Act. It is also stated that the Judge, Labour is having no jurisdiction as Central Labour Court is established by the Central Government at Jaipur. In claim application No.4/92, it is stated by the respondent No.1 that the present petitioners on 3 account of biasness, prejudice and malafide intention have not booked him for duty for the period commencing from 4.3.1989 to 15.6.1989 by alleging false charges against him. The present petitioners filed their detailed reply also tot he said claim application No.4/1992. Thereafter, both the applications were decided together and the order impugned was passed. Being aggrieved and dissatisfied with the order dated 4.1.1995, the present petitioners preferred an Original Application No.55/96 before the Central Administrative Tribunal at Jodhpur. On 15.2.1996 when the matter was listed before the Tribunal in view of the judgment given by Hon'ble Supreme Court in the matter of Divisional Personnel Officer Vs. Central Industrial Tribunal, Jaipur & Ors. On 6.11.1995, the original application and papers were returned back to the petitioners for seeking proper remedy before the appropriate forum as the Central Administrative Tribunal has no jurisdiction to entertain an application under Section 19 of the Administrative Tribunal Act, 1985 against the award/ order of the Labour Court. Thereafter, the present writ petition has been filed before this Court. Learned counsel for the petitioners argued that the order impugned dated 4.1.1996 is wholly without jurisdiction and contrary to law, therefore is liable to be quashed. It is further submitted that 4 the proceedings under Section 33-C (2) of the Act are in the nature of the executive proceedings for which prior adjudication or recognition by the employer of the claim of workman to be paid wages at the rate on which he claimed the computation. When the basis of claim is disputed then the remedy under Section 33-C (2) of the Act is not available to the workman. It is further submitted that in the present case, there was no earlier adjudication or recognition by the employer of the claim of workman to be paid wages by the employer, thus, the order passed under Section 33-C (2) of the Act deserves to be quashed. Learned Labour Court has failed to consider that the power of Labour Court in the said provisions extends to interpretation of the award or the statement of which the workman's right rests like the Executing Courts power to interpret the decree for the purpose of execution. It is further stated that where the basis of claim is referable to the award or statement but it does not extend the determination of dispute or entitlement or the basis of the claim, therefore, if there is no prior adjudication or recognition of the same by the employer and there is no existing right, which is to say already adjudicated upon or provided for, the power under Section 33_C (2) of the Act cannot be exercised. Therefore, the Labour Court has committed an error while doing so. On the other hand, learned counsel for the 5 respondent No.1 argued that for existing right, which is recognized by the employer, the power can be exercised under Section 33-C (2) of the Act. While inviting the attention of the Court towards the facts of the case, learned counsel for the respondent No.1 vehemently argued that according to the Rules, the claim of the respondent No.1 was treated to be an existing right by the Judge, Labour Court, which is proper, so also, the Labour Court is having jurisdiction to exercise power under Section 33-C (2) of the Act with regard to passing order for payment of existing right, therefore, looking to the facts of the case, the Judge, Labour Court has rightly arrived at with the finding that the claim of the workman can be computed because, it is an existing right. Learned counsel for the respondent No.1 has invited the attention of the Court towards the judgment in case of Railway Employees Co-operative Credit Society Vs. Labour Court, reported in 1968 RLW 82 prayed that the said judgment speaks that the legislature in enacting Section 33-C, which is to provide speedy remedy to the individual workmen, it should not be so construed as to exclude from the scope of the section cases of existing rights which are sought to be implemented by individual workmen. Further, even if a dispute is raised about the workman's right to receive the benefit in question, that question can be determined by the Labour Court 6 under Section 33-C, therefore, according to the learned counsel for the respondent, the finding of Judge, Labour Court with regard to existing right does not require any interference by this Court and this writ petition deserves to be dismissed. I have considered the rival submissions made by both the parties and perused the entire record of the case. Upon perusal of claim of the respondent No.1 and reply filed thereto by the employer, it is clear that the employer disputed the amount which is claimed by the respondent No.1 but the Judge, Labour Court has proceeded to adjudicate the entitlement and after taking into account certain documents gave finding that the amount was due and held that the workman is entitled for the payment. In my opinion, when the claim is disputed in the application under Section 33- C (2) of the Act by the employer then there is no question of proceeding further to adjudicate the matter by the Judge, Labour Court. The power of adjudicating the entitlement of workman can be exercised on a complaint under Section 33 (a) on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstate the workman. Here, in this case, the disputed question of fact has been decided by Judge, Labour Court under impugned order, so also, the 7 order has been passed while exercising power under Section 33-C (2) of the Act for such amount, which is disputed by the employer. The Hon'ble Apex Court in case of State of U.P. & Another V. Brijpal Singh, reported in (2005) 8 SCC 58, the Hon'ble Supreme Court has held that the claim can be computed if entitlement is recognized and there is existing right left with the workman employee. The relevant abstract of the aforesaid judgment reads as follows : “The workman can proceed under Section 33-C (2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that oder and reinstated the workman. A proceeding under Section 33-C (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. 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 tot he relationship between the industrial workman and is employer. It is not competent to the Labour Court exercising 8 jurisdiction under Section 33-C(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. The Labour Court has no jurisdiction to first decide the workman'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 tot he 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. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Sections 33-C (2) of the Act while the latter does not.” In this view of the matter, there is no dispute with regard to law for exercising power under Section 33-C (2) of the Act for computation of the 9 amount upon existing right, which is recognized by the employer. But, in this case, the employer has disputed the claim by way of filing reply, therefore, in my opinion, the Judge, Labour Court has exceeded its jurisdiction while deciding the entitlement and passing the order impugned for payment of Rs.14,854.72 paisa in favour of the respondent No.1, which is not permissible under the law. Accordingly, this writ petition is allowed. The order impugned dated 4.1.1995 passed by Judge, Labour Court, Bikaner is set aside. No order as to the cost. (GOPAL KRISHAN VYAS), J. arun