IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2296 OF 2009 Balu Chatur Tiwde ...Petitioner Vs. Kolhapur Zilla Shetkari Vinkari Sahakari Soot Girni Ltd. & Anr. .. Respondents --- Smt. Neeta Karnik for Petitioner Shri K.S. Bapat with T.R. Yadav i/b. Shri Avinash H. Fatangare for Respondent No.1 ---- CORAM: V.M. KANADE J. DATED 17TH APRIL, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondents. 2. The Petitioner is challenging an order passed by the Presiding Officer, Labour Court on an application filed by the Petitioner under section 33-C (2), demanding wages for the period from February, 2002 to 7.3.2005 at the rate of Rs.3,500/- p.m. which is aggregating to Rs.1,26,000/- along with bonus of Rs.10,500/- for three years and other amounts claimed in the said application. In the schedule to the application it has been stated in clause (3) that the Applicant had worked from February, 2002 to 7th March, 2005 every day and the wages for the said period had not been paid. Bonus also for the said period was not paid. In reply to the said application. In the schedule to the application it has been stated in clause (3) that the Applicant had worked from February, 2002 to 7th March, 2005 every day and the wages for the said period had not been paid. Bonus also for the said period was not paid. In reply to the said application, the management firstly stated that the Applicant had tendered his resignation somewhere in March, 2005 and, therefore, the relationship of employer and employee had come to an end when the application was filed under section 33-C (2). It is further stated that the application under section 33-C (2) was not maintainable. 3. The Petitioner led evidence and examined himself and he was cross examined by the Respondents. The Labour Court came to the conclusion that there was a dispute between the parties as to whether the Petitioner herein had worked during the said period and, therefore, the question as to whether he was entitled to claim the salary for the said period itself had to be determined first. The Labour Court, therefore, has observed that the application filed under section 33-C (2) was in the nature of execution of orders passed by the competent authority on issues which were adjudicated by the said authority and only after such adjudication an application be filed under section 33-C (2). 4. Mrs. Karnik, the learned Counsel for the Petitioner submitted that the Labour Court had erred in holding that there was a dispute regarding the fact whether the Petitioner had, in fact, worked during the said period or not. She submitted that in an application under section 33-C (2) it is open for the Labour Court to decide the said issue on the basis of the evidence which was led between the parties and, therefore, the Labour Court had not exercised its jurisdiction vested in it under section 33-C (2) and, therefore, the said order was patently illegal. She further submitted that the Labour Court had erred in relying on the ratio of the judgment in the case of D. Krishnan & Anr. vs. Special Officer, Vellore Co-op. Sugar Mill & Anr. Reported in 2008 III CLR page 111. She submitted that, in fact, the Apex Court in the said case has held that the Appellants themselves were unsure about their status and, therefore, it approved the order passed by the Division Bench which had held that the labour Court has no jurisdiction to decide the status of the Appellants. She submitted that in the said judgment the Division Bench had also taken into consideration the another judgment of the Apex Court in the case of State of U.P. & Anr. vs. Brijpal Singh (2005) 8 SCC 58 and in the said ratio of the said judgment of this Court was reproduced. She invited my attention to the observations made by the Apex Court in the case of Brijpal Singh (supra) and submitted that if the right to the money which was sought to be calculated or benefit which was sought to be computed was a existing one, the Labour Court under section 33-C (20 would decide the said issue. 5. Shri Bapat, the learned Counsel appearing on behalf of the Respondents, on the other hand, vehemently opposed the said submission made by the learned Counsel for the Petitioner. He submitted that the Labour Court had correctly held that there was a dispute about the fact whether the Petitioner had, in fact, worked during the said period. He submitted that, therefore, there was no reason to interfere with the order passed by the Labour Court. 6. I have heard both the Counsel. The question of maintainability of an application filed under section 33-C (2) is quite well settled. The Apex Court in the case of Brijpal Singh (supra) has observed as under:- “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 33-A or an 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 (P) Ltd. v. Suresh Chand held that 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. 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.” (emphasis supplied) The Apex Court, therefore, has observed that the right to the money must be an existing right and further has observed that the said right should be 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. 7. In the present case, there is a dispute between the parties as to whether the Petitioner had, in fact, worked during the said period and, therefore, in my view, the Labour Court was justified in coming to the conclusion that there was a serious doubt as to whether the workman had worked during the said period and, therefore, this issue had to be adjudicated first and only, thereafter, the workman, if such a decision is given in his favour, would apply for non-payment of wages during the said period. The Labour Court also in its order has taken into consideration the evidence on record and more particularly the statement of the Petitioner in his cross examination. In the cross examination, the Petitioner has stated that he does not recollect whether he worked and received salary of 14 ½ days in March, 2002, 10 days in April, 2002, 12 days in May, 2002 and 11 days in June, 2002. Further, in the cross examination, the Petitioner has admitted that certain proceedings were filed by the Union which were pending before the Labour Court. He, however, denied the suggestion about the nature of proceeding which was filed by the Union and the suggestion was also made that the said complaint was pending in the Industrial court. However, he denied knowledge about the same. He has also made a statement in the cross examination that he has not applied for deleting his name from the said case. 8. The Labour Court, therefore, was justified on the basis of these statements in the cross examination made by the Petitioner in coming to the conclusion that it was first necessary to adjudicate this dispute between the parties and only after adjudication, this application could have been filed. In my view, there is no reason, therefore, to interfere with the order passed by the Presiding Officer of the said Labour Court. 9. Petition is dismissed. V.M. KANADE J.