IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 122 of 2002 (M/S) Mussoorie Dehradun Development Authority ..……… Petitioner. Versus Labour Court, Dehradun and another ……… Respondents. Hon’ble Tarun Agarwala, J. Heard Ms. Puja Banga, the learned counsel for the petitioner and Mr. Rakesh Thapliyal, the learned counsel for the respondents. The petitioner is aggrieved by an order passed by the Labour Court u/S 33 (C) (2) of the Industrial Disputes Act. The brief facts leading to the filing of the writ petition is, that the workman/opposite party No.2 was appointed on the post of Junior Clerk and filed an application u/S 33 (C) (2) of the Act claiming wages and designation on the post of Law Assistant. The opposite party contended that the employer had appointed the opposite No.2 as a Junior Clerk and was taking the work of a Law Assistant and, therefore, he was entitled for the wages and designation of the Law Assistant. The petitioner before the Labour Court denied this fact and contended that the opposite party was appointed as a Junior Clerk and was also being paid the wages of that post. The petitioner further denied the fact that the opposite party was working as a Law Assistant. The petitioner further contended that the application u/S 33 (C) (2) was not maintainable since the claim was not based on any existing right or entitlement. The Labour Court, after considering the material and documentary evidence brought on record, found even though, the opposite party was appointed as a Junior Clerk but he was working as a Law Assistant and that the petitioner was not only addressing 2 the opposite party as a Law Assistant but was also seeking legal opinion from him in various matters. The Labour Court, consequently, on the basis of the documentary evidence held that the workman was entitled to receive the pay of Legal Assistant. The Labour Court, consequently, directed payment of compensation amounting to Rs.1.25 lacs alongwith cost of Rs.1,000/-. The petitioner, aggrieved by the said order, has filed the present writ petition. The only submission raised by the learned counsel for the petitioner is that the application of the opposite party was not maintainable u/S 33 (C) (2) of the Act, in as much as, there was no existing right nor was it based on any entitlement. No doubt, the entitlement must flow from the existing right and if that is so, the application u/S 33 (C) (2) would not be maintainable as is clear from the catena of decisions given by the Supreme Court from time to time. But there is exception to this. The Supreme Court in the case of Municipal Corporation of Delhi Vs. Ganesh Razak and another (1995) 1 SCC 235 has held that the claim of the workers for equal pay for equal work was a question which was required to be adjudicated and, consequently, such entitlement or basis of the claim of the workman could not be adjudicated in a proceedings u/S 33-C (2). The Supreme Court in the aforesaid judgment held as under :- “12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceedings under 3 Section 33-C (2) of the Act. The Labour Court has not jurisdiction to first decide the workmen’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 recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the 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.” In the present case, the situation is slightly different and the moot question is whether the workman had the right to receive the benefit which was already existing previously and which was being denied to the workman for ulterior reasons. Further, whether such benefit which the workman would have otherwise received but was wrongly denied, could the workman be relegated to another forum by raising an industrial dispute or move an application u/S 33 (C) (2) of the Act. The Constitution Bench of the Supreme Court in Central Bank of India Ltd. Vs. P.S. Rajagopalan AIR 1964 SC 743 has held that if the right to receive the benefit is disputed in that event it has to be determined by the Labour Court and that before computing the benefit in terms of money, the Labour Court has to deal as to whether the workman had a right to receive that benefit. The Constitution Bench further held that if the right was not disputed, nothing more was required to be done and the Labour Court could proceed straightway u/S 33-C (2) to compute the value of the benefit in terms of money. 4 Similarly, in Chief Mining Engineer, East India Coal Co.Ltd. Vs. Rameswar AIR 1968 SC 218, the Supreme Court held that the right to the benefit must be an existing one, i.e., already adjudicated upon and that the scope of Section 33-C (2) is wider than the scope of 33-C (1) in as much as the benefit provided by a scheme or a statute could be adjudicated u/S 33-C (2). In Tara and others Vs. Director, Social Welfare and others, (1998) 8 SCC 671, the Supreme Court held that where the status and nature of employment was not in dispute, the same could be adjudicated u/S 33-C (2). Similar view was held by the Supreme Court in State of U.P. and another Vs. Brijpal Singh (2005) 8 SCC 58. In the light of the aforesaid, the workman has claimed the benefit of pay scale of the Law Assistant which work he was performing. The Labour Court has found from the documentary evidence that the workman was performing the work of a Law Assistant. These findings are the findings of fact which cannot be interfered with a writ jurisdiction. In the light of the aforesaid decisions of the Supreme Court that where the status and the nature of employment was not in dispute, the same can be adjudicated u/S 32 (C) (2). Consequently, at this stage, this Court is of the opinion that on technicality, the workman’s case cannot be thrown out nor could he be relegated to raise a reference u/s 10 of the Act. In the light of the aforesaid, the claim of the workman for payment of wages was maintainable but the claim for being designated as a Law Assistant was not maintainable. In my view, the Labour Court was justified in granting payment of compensation to the workman. This court does not find any error in the impugned order. The writ petition is dismissed. (Tarun Agarwala, J.) Dated 30.04.2010 Shiv