IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1260 of 2008. Date of decision:23.6.2011 ___________________________________________________ Arvind Kumar Sharma …. Petitioner Versus Executive Engineer, HP PWD & Ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No. For the petitioner: Mrs. Devyani Sharma, Advocate For the respondents: Mr. Vivek Singh Thakur, Addl. AG with Mr. Rajesh Mandhotra, Dy. AG for respondent No.1. Mr. K.D. Sood, Advocate for respondent No.2. _________________________________________________ Deepak Gupta, J. (Oral) 1. This petition is directed against the award dated 29.5.2008, passed by the learned Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala whereby he awarded a sum of Rs. 60,396/- alongwith interest to the claimant-Ram Murat. _______________________ Whether the Reporters of Local Papers may be allowed to see the judgment Yes. 2 2. Briefly stated, the facts of the case are that the present petitioner who is a contractor by profession was awarded a contract for construction of Water Sports Complex at Luhnoo in Bilaspur. The claimant-Ram Murat is a welder by profession. He was engaged by the present petitioner-Sh. Arvind Kumar Sharma to carry out the welding work on piece rate basis. There is no dispute with regard to this aspect. According to the claimant, he completed the welding work on piece rate basis and, therefore, was required to be paid Rs. 1,80,646/-. However, he was only paid Rs. 1,00,000/- (rupees one lac) only and, therefore, an amount of Rs. 80,646/- was still due to him. He filed an application purportedly under Section 33-C(2) of the Industrial Disputes Act, 1947. 3. The present petitioner denied that the value of the work done by the claimant-Ram Murat and others was of the value of Rs. 1,80,646/-. His case is that the entire amount due and payable to the claimant was paid to him. He also alleged that the welding set and drilling machine which were provided by him had been taken away by the claimant-Ram Murat. 4. The learned Tribunal recorded evidence and came to the conclusion that the value of the work done 3 by the claimant was Rs. 1,67,846/- and Rs. 7,450/- deserves to be deducted on account of the cost of the welding set and drilling machine and, therefore, held that an amount of Rs. 60,396/- was due to the claimant from the present petitioner. 5. The learned Tribunal forgot that it was exercising jurisdiction under the Industrial Disputes Act, 1947 and proceeded to decide the case as if it was Civil Court. Section 33-C(2) of the Industrial Disputes Act reads as follows:- ”(2) Where any workman is entitled to receive from the employer any money 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 or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government [within a period not exceeding three months]: Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]” 6. The scope of this provision has been the subject matter of a large number of cases and is no longer res integra. 7. This Court in H.P. State Electricity Board Vs. Presiding Officer, 1999(1) Shim. L.C. 491 while discussing the scope of the provisions of Industrial Disputes Act, 1947 held as follows:- 4 ”x x x x x x x x x x x x x x x x x x x x x x x x x x x x 6. Section 33-C(2) of the Act provided that where any workman is entitled to receive from the employer any money 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 or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under the Act be decided by such Labour Court as may be specified in this behalf by the appropriate Government. Section 22 of the Bonus Act stipulates that where any dispute arises between an employer and his employees with respect to the bonus payable under the Bonus Act or with respect to the application of the said Act to an establishment in public sector then such dispute shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act, 1947 or of any corresponding law relating to investigation and settlement of Industrial disputes, in force in a State and the provisions of that Act or, as the case may be, such law shall, save as otherwise expressly provided, apply accordingly. There is no controversy that nothing specific for investigation and settlement of disputes has been provided under the Bonus Act in this regard and that the avenue of remedy available under the Industrial Disputes Act alone is only to be availed of. Reference has also been made to Section 7-A of the Act which provides for constitution of one or more Industrial Tribunals for adjudication of industrial disputes relating to any of the matters specified in the Second Schedule or the Third Schedule to the Act and entry No.5 of the Third Schedule enumerating the matters within the jurisdiction of the Industrial Tribunal of which one is “Bonus, profit sharing, provident fund and gratuity.” It is by now well settled by authoritative pronouncements of more than one decisions of the apex Court that proceedings contemplated by Section 33-C(2) are analogous to execution proceedings and the Labour Court, like the executing Court, as in the execution proceeding governed by the Code of Civil Procedure on the interpretation of the award on which the claim is made by implementing the adjudication, if any already, made by a decree and not to adjudicate any dispute the claim of which itself requires adjudication for its enforcement in the form of a decree. The power of the Labour Court under Section 33-C(2) was to deal with by interpretation of award or settlement on which the workman’s rights rest like executing Court’s powers for the purpose of the execution where the basis of the claim is referable to the award or settlement and that it does not extend to determination of the dispute of the very entitlement or the basis of the claim if there be no power of adjudication or recognition of the same by the employer. x x x x x” 5 8. It is well settled law that proceedings under Section 33-C(2) of the Act are akin to execution proceedings and disputed questions cannot be decided in such proceedings. The apex Court in D. Krishnan and another Vs. Special Officer, Vellore Cooperative Sugar Mill and another, (2008) 7 Supreme Court Cases 22 again held as follows:- ” x x x x x x x x x x x x x x x x x x x x x x x x x x 12. We have considered the arguments advanced by the learned counsel for the parties. The fact that proceedings under Section 33-C(2) are in the nature of execution proceedings is in no doubt, and such proceedings presuppose some adjudication leading to the determination of a right, which has to be enforced. Concededly there has been no such adjudication in the present case. It will be seen that the reliance of the appellant workmen is exclusively or documentary evidence placed on record which consisted primarily of the punch time cards and the representations that had been filed from time to time before the respondents. It is also true that the claim raised by the appellants had been hotly disputed by the respondents. The question that arises in this situation is whether reliance only on the documentary evidence was sufficient to prove the case. x x x x x x x x x x x x” 9. Here the basic dispute was-what was the value of the work done by the claimant? This could not have been the subject matter of proceedings under Section 33-C(2) of the Act. The Labour Court had no jurisdiction to decide this dispute which did not fall within the ambit of Section 33-C(2) of the Act. The award of the learned Tribunal is set aside. Liberty is, however, reserved to the claimant to take out appropriate proceedings before the appropriate forum for redressal of 6 his grievances. However, it is made clear that this Court has not expressed any opinion on the merits of the case. It shall be open to the claimant-Ram Murat to file appropriate proceedings before the appropriate forum for recovery of the amount, if any, due to him and he can apply for exemption of the period spent before the Labour Court and this Court while computing the limitation. With these observations, the writ petition is disposed of. No costs. (Deepak Gupta) Judge June 23, 2011 (Krn Guleria)