/^^f «^ PiTITIONER HIQH COURT OF CHHATTISGARH : BiLASPUR Writ Petition No. 808 of 2004 M/s Radius Cotiporation Limlted, a company incorporated under the indian Companies Act, havsng ite registered office at 3, Late Kunj Charani Road, Thakurdwara, Numbai (MS)»through Jts auttiorized signatory Mr. Pramod Agrawal, aged about 40 years, son of Shri T.R. Agrawai, resident of Vardhman Nagar, Rajnandgaon (CG). RESPQNDENTS Versys 1. Vinay Soni, S/o Vishnu Prasad Soni, Cashier, Sonarpara, Near Sheetla Mandir, Rajnandgaon, Dist. Rajnandgaon. 2. Labour Court, Rajnandgaon, through the PresidJng OfRcer, Old Tahsil OfRce, Rajnandgaon. 3. Smt. Shashi Soni, Presiding OfTicer, LabourCourt, Rajnandgaon. 4. State of Chhatti^iarh, through ttie Secretery, Department of Labour. DKS Bhawan, Raipur. (Writ petition under Article 228/227 of the Constitution of India) Singie Bench : Hon'bte Shri Satish K. Agnihotri, J. Present: Shri Prashant Jaiswai, Sr. Advocate with Shri Shaiiendra Sharma, Advocatefor the petitloner. Shri Rajeev Shrivastava, counsei forthe respondent No.1. Ms Sunita Jain, Panel Lawyer for the State. 2. oiykLOBPIR (Passed on this 28 dayofApril, 2009) Chaltenge in this petition is to the ord@r dated 28-10-2003 (Annexure - P/1) passed by the Labour Court, Rajnandgaon, in case No.22/10 Act Claim/98 in an apptication ftled under Seetion 33-C.<2) ofthe Industrial Disputes Act, 1947 (for short sthe Act, 1947"}. The facte, in nutehell, retevant for disposal of the case, are that ttie respondent No.1 working with the petitioner company filed an application under Section 33-C.(2) ofthe Act, 1947 beforethe Labour g^- ^ 6. ") 1^1 Court, Rajnandgaon, seeking reiiefs as p@r scheduie "A" to the application. The petitioner company fiied its written statement (Annexure - P/3) denying the entitSement of the respondent No.1 for working on Sundays and other holidays. The petitioner company stated that the respondent No.1 has never worked on Sundays and other holidays. Further the provisions under Section 16 of the Payment of Bonus Act, 1965 are not applicable to the respondent No.1, as the respondent No.1 has not worked during the period for which he was claiming bonus. The Labour Court, whiie exercising its jurisdlction under Section 33-C.(2) of the Act, 1947, decided the djspute and came to the conclusion tiat the petitioner has failed to establish that the respondent No.1 was not entitled to bonus. Accordingiy, it was ordered for payment of bonus of 8.33%. On other issues with regard to over time, for working on Sundays and other hoSidays Is concerned, the same was rejected. Being aggrieved by the said ord©r,the petitioner company had filed this petition. Shri Jaiswai, learned senior counsei appearing on behalF of the petitioner, would submit that once the dispute is involved the Labour Court cannot exercise its jurisdiction under Section 33-C.(2) of the Act, 1947. Per contra, Shri Shrivastava, leamed counseS appearing on behatf of the respondent No.1, supporting the impugned order would submit that there was no dispute with regard to payment of bonus and the same was also capable of being computed, as the bonus amount is fixed andworking ofthe respondent No.1 is not in dispute. 1 have heard learned counset appearing for the parties, perused the pieadings and the documents appended thereto. Aecording to the learned counsel for the petitioner the questlon asto whether the respondent No.1 is entrtled to bonus or not requires consideration and the said dispute has to be settled fir^t before grating relief under the provisions of Section 33-C.(2) ofthe Act, 1947. For benefit, Section 33-C.(2) and (5) of the i.D. Act reads as under: M33.C»Recovery of money due from an eniployer. (1) XXX XXX XXX (2) Where any workman is entiitied to rweive from the ©mployerany 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 ben^rt should b@ computed, then the question may, subject to any rules that may be made under this Act, be decided bysuch Labour Court as may be specified in this behalf by the appropriate Government (within a period not exceeding three months]: (3) xxx xxx xxx (4) xxx xxx xxx (5) Where workmen employed under the same employer are.entitJed to receive from him any money or any benefrt capabie of being computed in terms of money, then, subject to such ruies as may be made in this behalf, a single application for the recovery of the amount due may be made on behatf of or in respect of any number of such workmen" 8. The Supreme Court, in Municlpal Corporation of Delhi v. Ganesh Razak and anottier1 observed as under: "12. The High Court has referred to some of these decisions but missed the true importthereof. The ratto of these decisions ciearly indicates that where ihe very basis of the claim or the entitlement of the workmen to a certein benefit is disputod, ttiere being no eariier adjudication or recognition thereof by the employer, the dispute relatsng to errtitlement is not Incidenta! to the benefit claimed and is, Ijhereforet cleariy outside the scope of a proceedsng under Sectlon 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitiement 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 ss onSy when the entitiement has been eariier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation at the interpretation is treated as incidentat to the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret ie decree for the purpose ofits execution." 9. In U.P. State Road Transport Corporation v. Birendra Bhandari2, the Supreme Court, observed as under: "7. The benefit which can be enforced under Section 33-C(2) is a pre-existing benefit or one flowing from a pre-existing right. 1 (1995)18cc 235 2 (2006)108cc 211 4 p- 8. In State Bank af India v. Ram Chandm Dubey this Court held as under: (SCC pp. 77-78, paras 7-8) "7. When a reference is mad®to an Industrial Tribunat to adjudicate the question not oniy as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be v^th full or partiai back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If alter the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in ctetermining whether or not reinstatement should be with full back wagesor with continuity of ennployment. Such questions can be appropriately examined oniy in a reference. When a reference te made under Section 10 of the Act, all indidental questions arising thereto can be determined by the Tribunal and in this particylar case, a specific question has been referred to &ie Tribunal as to the nature of reSief to be granted to the workmen. 8. The principles enunciated in the d^islons referred by either side can be summed up as foliows: Whenever a workman is entitted to receive from his emptoyer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court und©r Section 33-C(2) of the Act. The benefit sought to be enforoed under SecGon 33-C(2) of the Act is necessarily a pre-existing benefrt or one flowing from a pre-existjng right. The difference between a pre-existing right or benefrt on one hand and the right or benefrt, which te considered just and fair on the other hand is vital. The former falls wittiin jurisdiction d! Labour Court exercising powers under Section 33-C(2) of the Act white the tatter does not. It cannot be spelt out from the awarei in the present case that such a right or beneflt has accrued to the workman as the specific question ofthe reliefgrantedis confined onlyto the reinstatement without stating anything more as to the back wages. Hence that relief must be deemied to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudScation of a daim for back wages all reievant circumstences which will have to be gone into, are to be considered in a judicious manner. Therefore, tti® appropriate forum wherein such question of back wages coutei be aaSa s®Sa ,i decided is only in a proceeding to whom a refersnce under Section 10 of fte Act fe made. To state thai merely upon reinsiatement, a workman woutd be entstled, under the terms of av^ard, to ail his arrears of pay and allowances would be incorrect because severa! faators wiii have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at ali and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is imptied in fte relief of resnstatement or that the award of relrsstatement itself conferred right for claim of backwages." 10. The ratio as enunciated in UPSRTC (supra) h^s been referred with approval in Vijay Kumar & Others v. Whiri Pool of India Limited & Others3. 11. Applying the well settled principles of iaw as above sterted to the facts of the present case it is held that the Labour Court has exceeded its jurisdictlon by first determining the dispute raised and ttiereafter granting relief. Thus, the impugned order dated 28-10-2003 (Annexure -" P/1) ss set aside. 12. In the resuit, the petitioner is allowed. However, iiberty is reserved to the respondent No.1 to take recourse to other alternative forum seeking redressal of his grievance, if any and if so advised. No order asto costs. _ „_ _ Gowri Sd/- Satish K. Agnihotri Judge { (2008) 1SCC 119