Allahabad High Court
Chandra Bhal Mishra vs State Of U.P. And 2 Others on 23 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1644, 2020 (2) ALJ 1, (2019) 10 ADJ 734 (ALL), (2019) 162 FACLR 994, (2019) 5 ALL WC 4578
Author: Y.K.Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- WRIT - C No. - 23708 of 2019 Petitioner :- Chandra Bhal Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Anand Srivastava Counsel for Respondent :- C.S.C.,Anuj Pratap Singh Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Anand Srivastava, learned counsel for the petitioner and Sri Swapnil Kumar, learned counsel appearing for Respondent No.3.
2. The present petition seeks to challenge the order dated 15.04.2019 passed by the Presiding Officer, Labour Court (1st), U.P. Kanpur Nagar in Misc. Case No. 08/2018 (Chandrabhal Mishra vs. U.P.S.I.D.C.) whereby the application filed by the petitioner under Section 33-C(2) of the Industrial Disputes Act, 1947 (in short 'the Act') has been rejected.
3. The records of the case indicate that an application under Section 33-C (2) of the Act was filed by the petitioner claiming that he was entitled to promotion on a higher post from the date on which his juniors had been promoted and further claiming computation of the difference of wages in respect of the promotional post. A chart had also been appended along with the application in respect of the claim for difference of wages which would have been admissible had he been granted promotion to the higher post.
4. The aforementioned claim had been sought to be put forth by the petitioner on the basis of an earlier judgment of this Court dated 9.11.2004 passed in Special Appeal No. 1463 of 2004 (Chandra Bhal Mishra Vs. Principal Secretary Industries, Government of U.P. and others) which had been allowed in the following terms :-
"We, therefore, quash the order dated 07.07.1099 by which the resignation letter is said to have been accepted. The petitioner-appellant shall be treated to be in continuous service and shall be entitled to all the benefits as he had been continuous service but he shall not claim any salary for the period he remained out of service.The respondent Corporation shall reinstate the petitioner -appellant forthwith."
5. The Labour Court in the order dated 15.4.2019 which is sought to be challenged in the present petition has duly recorded a finding that it was the admitted case of the petitioner that in compliance of the aforementioned judgment dated 9.11.2004 the petitioner had been taken in service by his employers vide order dated 16.12.2004 and he had been paid the admissible salary and allowances against the post on which he had been working.
6. The Labour Court has also taken note of the fact that the respondent-employer was a State Government Undertaking where promotions were made under certain specified norms as per the relevant rules. The Labour Court upon taking note of the fact that the claim sought to be raised by the petitioner was for computation of an amount which would be admissible to the petitioner upon his being granted promotion to a higher post, has held that the said claim would not be maintainable under Section 33-C (2) of the Act in view of the fact that the petitioner having not been promoted to the higher post there was no existing right to raise a claim for computation of the amount which would become due to him upon his being granted the promotional post. It has also recorded that the adjudication of the claim raised by the petitioner could be made only upon a valid reference under the U.P. Industrial Disputes Act, 1947 and adjudication of the same by a competent court, and only thereafter the petitioner could seek computation of the amount. The application filed under Section 33-C(2) has accordingly been rejected.
7. Contention of the counsel for the petitioner is that he was entitled to promotion from the date on which his juniors had been promoted and was also entitled to claim computation of the amount which would become due to him upon being granted the promotional post.
8. Per contra, Sri Swapnil Kumar, learned counsel appearing for the respondent no. 3 has submitted that in terms of the order dated 9.11.2004 passed by this Court, the petitioner had been taken back in service and was granted all the benefits which he was entitled to in respect of the post on which he had been working by treating him to be in continuous service. It was submitted that the aforementioned order dated 9.11.2004 did not grant entitlement to the petitioner to claim benefits of the promotional post or to apply for computation of difference of wages in respect of the promotional post. It was further submitted that the petitioner having not been promoted to the higher post no claim for computation of the said benefits could be made under Section 33-C (2) of the Act.
9. Heard learned counsel for the parties and perused the record.
10. The question which falls for consideration is as to whether the petitioner could have invoked the provisions of Section 33-C (2) of the Act seeking computation of the amount which would have been admissible to him upon being granted promotion to a higher post.
11. In order to appreciate the controversy it would be necessary to advert to the relevant statutory provision which is as follows :-
33-C. Recovery of money due from an employer "(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."
12. In terms of the aforementioned provision, in a case 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, be decided by the Labour Court.
13. It is thus seen that the benefit of which computation may be sought under Section 33-C (2) must be based on a previous entitlement of the workman or in other words it must be based on a pre-existing benefit or a benefit flowing from pre-existing right.
14. The proceedings under Section 33-C (2) have been held to be in the nature of execution proceedings under which the Labour Court calculates the amount due to a workman from his employer or if the workman is entitled to any benefit which is capable of being computed in terms of money the Labour Court may proceed to compute the said benefit in terms of money. However, the right to the money which is sought to be calculated or the benefit which is sought to be computed must be an existing one i.e. already adjudicated upon, and it would not be competent for the Labour Court exercising 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 be subject matter of an industrial dispute to be raised in a reference under Section 10 of the Act.
15. The scope of Section 33-C (2) fell for consideration in the case of The Central Bank of India Ltd. v. P. S. Rajagopalan1, wherein it was held that while construing the provisions of Section 33-C (2) it was to be borne in mind that cases which fall under Section 10 (1) are not brought within its scope. The relevant observations made in the judgment are as follows:-
"9......It is urged by the appellant that sub-section (2) can be invoked by a workman who is entitled to receive from the employer the benefit there specified, but the right of the workman to receive the benefit has to be admitted and could not be a matter of dispute between the parties in cases which fall under sub-section (2). The argument is, if there is a dispute about the workman's right to claim the benefit, that has to be adjudicated upon not under sub-section (2), but by other appropriate proceedings permissible under the Act, and since in the present appeals, the appellant disputed the respondents' right to claim the special allowance, the Labour Court had no jurisdiction to deal with their claim. In other words, the contention is that the opening words of sub-section (2) postulate the existence of and admitted right vesting, in a workman and do not cover cases where the said right is disputed.
10. On the other hand, the respondents contend that sub-section (2) is broad enough to take in all cases where a workman claims some benefit and wants the said benefit to be computed in terms of money. If in resisting the said claim, the employer makes several defences, all those defences will have to be tried by the Labour Court under sub-section (2). On this argument all questions arising between the workmen and their employers in respect of the benefit which they claim to be computed in terms of money would fall within the scope of sub-section (2)."
16. Further, after referring to the legislative history of the provision, it was held as follows :-
"15. The legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so, inserted Section 33-A in the Act in 1950 and added Section 33-C in 1956. These two provisions illustrate the cases in which individual workmen can enforce their rights without having to take recourse to Section 10(1) of the Act, or without having to depend upon their union to espouse their cause. Therefore, in construing Section 33-C we have to bear in mind two relevant considerations. The construction should not be so broad as to bring within the scope of Section 33-C cases which would fall under Section 10(1). Where industrial disputes arise between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under Section 10(1). These disputes cannot be brought within the purview of Section 33-C. Similarly, having regard to the fact that the policy of the legislature in enacting Section 33-C is to provide a speedy remedy to the individual workmen to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workmen. In other words, though in determining the scope of Section 33-C we must take care not to exclude cases which legitimately fall within its purview, we must also bear in mind that cases which fall under Section 10(1) of the Act for instance, cannot be brought within the scope of Section 34-C (sic 33-C)."
17. In a case where a claim was raised with regard to entitlement of supervisory allowance alleging wrongful reversion in the case of State Bank of Bikaner & Jaipur Vs. R.L. Khandelwal2, it was held by the Supreme Court that an application under Section 33-C (2), in the absence of any adjudication of the rights of the workman, would not be maintainable. The relevant observations made in the judgment are as follows.
"5.The scope of the function and powers of a Labour Court, when dealing with an application under Section 33-C(2) of the Act, has been laid down by this Court in several cases, amongst which mention may be made of Punjab National Bank Limited v. K.L. Kharbanda, [1962] Suppl. 2 S.C.R. 977 ; 22 F.J.R. 171, The Central Bank of India Ltd. v. P.S. Rajagopalan etc., (1963)IILLJ89SC , and Bombay Gas Co. Ltd. v. Gopal Bhiva and others, (1963)IILLJ608SC . The effect of these decisions was recently summarised in the judgment delivered on August 8,1967, in Chief Mining Engineer, M/s.East India Coal Co. Ltd. v. Rameshwar and others, Civil Appeals Nos. 257-267 of 1966-- (1967) 33 F.J.R. 90. These decisions make it clear that a workman cannot put forward a claim in an application under Section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject-matter of an industrial dispute only requiring reference under Section 10 of the Act.
In the present case, the respondent himself in paragraph 2 of his application under Section 33-C(2) admitted that he continued to do the work in the supervisory capacity until on February 3, 1956, he was wrongfully reverted to do clerical work because he demanded benefit of the supervisory allowance prescribed under the Sastry Award. The question whether his reversion was wrongful or rightful, or whether it should be set aside, is not a matter within the jurisdiction of a Labour Court dealing with an application under Section 33-C(2). The vacation of such an order can only be sought by raising an industrial dispute and having it decided in accordance with the other provisions of the Act. A Labour Court, acting under Section 33-C(2), has to decide the application on the basis that, in fact, the respondent was, during the relevant period, doing clerical work and not employed on supervisory duties............"
18. In the case of M/s Punjab Beverages Pvt. Ltd., Chandigarh Vs Suresh Chand And Another3, while considering the scope of Section 33-C (2) it was held that the proceedings thereunder are in the nature of execution proceedings. The relevant observations made in the judgment are as follows :
"4..........It is now well-settled, as a result of several decisions of this Court, 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 his 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. But 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. (Vide Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar [AIR 1968 SC 218 : (1968) 1 SCR 140 : (1968) 1 LLJ 6 : 33 FJR 90] .) It is not competent to the Labour Court exercising 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. (Vide State Bank of Bikaner and Jaipur v. R.L. Khandelwal [(1968) 1 LLJ 589 : (1967-68) 33 FJR 462 : (1968) 38 Com Cas 400] .) That is why Gajendragadkar, J. pointed out in The Central Bank of India Ltd. v. P.S. Rajagopalan [AIR 1964 SC 743 : (1964) 3 SCR 140 : (1963) 2 LLJ 89 : 25 FJR 44] that :
"if an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under Section 33-C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre-existing contract, cannot be made under Section 33-C(2)."
The workman, who has been dismissed, would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under Section 10 the Industrial Tribunal may find, on the material placed before it, that the dismissal was unjustified, yet until such adjudication is made, the workman cannot ask the Labour Court in an application under Section 33-C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under Section 33-C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. Hence it becomes necessary to consider whether the contravention of Section 33-(2)(b) introduces a fatal infirmity in the order of dismissal passed in violation of it so as to render it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid."
19. A similar view was taken in the case of Central Inland Water Transport Corporation Limited Vs.The Workmen and Another.4, wherein it was held that the proceedings under Section 33-C (2) being in the nature of an execution proceeding, an investigation of the alleged right of re-employment is outside its scope and Labour Court exercising powers under Section 33-C (2) cannot arrogate to itself the functions of adjudication of a dispute relating to the claim of re-employment. The observations made in the judgment are as follows :-
"12. It is now well-settled that a proceeding under Section 33-(C)(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer East India Coal Co. Ltd. v. Rameswar 1968 (1) Lab LJ 6, it was reiterated that proceedings under Section 33-(C)(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the position of an executing court. It was also reiterated that the right 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 an industrial workman and his employer.
13. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33-(C)(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under Section 33-(C)(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental'. To call determinations (i) and (ii) 'Incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33-(C)(2) that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions-say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to its main business of computation. In such cases determinations (i) and (ii) are not 'Incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R.L. Khandelwal that a workman cannot put forward a claim in an application under Section 33-(C)(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an ID which requires a reference under Section 10 of the Act.
14. The scope of Section 33-(C)(2) was illustrated by this Court in The Central Bank of India Ltd. v. P.S. Rajagopalan etc.(1963)IILLJ89SC . Under the Shastri Award, Bank clerks operating the adding machine were declared to be entitled to a special allowance of Rs. 10 per month. Four clerks made a claim for computation before the Labour Court. The Bank denied the claim that the clerks came within the category referred to in the award and further contended that the Labour Court under Section 33-(C)(2) had no jurisdiction to determine whether the clerks came within that category or not. Rejecting the contention, this Court held that the enquiry as to whether the 4 clerks came within that category was purely 'incidental' and necessary to enable the Labour Court to give the relief asked for and, therefore, the Court had jurisdiction to enquire whether the clerks answered the description of the category mentioned in the Shastri Award, which not only declared the right but also the corresponding liability of the Employer bank. This was purely a case of establishing the identity of the claimants as coming within a distinct category of clerks in default of which it would have been impossible to give relief to anybody falling in the category. When the Award mentioned the category it, as good as, named every one who was covered by the category and hence the enquiry, which was necessary, became limited only to the clerks' identity and did not extend either to a new investigation as to their rights or the Bank's liability to them. Both the latter had been declared and provided for in the Award and the Labour Court did not have to investigate the same. Essentially, therefore, the assay of the Labour Court was in the nature of a function of a court in execution proceedings and hence it was held that the Labour Court had jurisdiction to determine, by an incidental enquiry, whether the four clerks came in the category which was entitled to the special allowance.
15. It is, however, interesting to note that in the same case the Court at page 156 gave illustrations as to what kinds of claim of a workman would fall outside the scope of Section 33-(C)(2). It was pointed out that a workman who is dismissed by his employer would not be entitled to seek relief under Section 33-(C)(2) by merely alleging that, his dismissal being wrongful, benefit should be computed on the basis that he had continued in service. It was observed:
"His ... dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed ... him, a claim that the dismissal ... is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre-existing contract, cannot be made under Section 33-(C)(2)". By merely making a claim in a loaded form the workmen cannot give the Labour Court jurisdiction under Section 33-(C)(2). The workman who has been dismissed would no longer be in the employment of the employer. It may be that an industrial tribunal may find on an investigation into the circumstances of the dismissal that the dismissal was unjustified. But when he comes before the Labour Court with his claim for computation of his wages under Section 33-(C)(2) he cannot ask the Labour Court to disregard his dismissal as wrongful and on that basis compute his wages. In such cases, a determination as to whether the dismissal was unjustified would be the principal matter for adjudication, and computation of wages just consequential upon such adjudication. It would be wrong to consider the principal adjudication as 'incidental' to the computation. Moreover, if we assume that the Labour Court had jurisdiction to make the investigation into the circumstances of the dismissal, a very anomalous situation would arise. The Labour Court after holding that the dismissal was wrongful would have no jurisdiction to direct reinstatement under Section 33-(C)(2). And yet if the jurisdiction to compute the benefit is conceded it will be like conceding it authority to pass orders awarding wages as many times as the workman comes before it without being reinstated. Therefore, the Labour Court exercising jurisdiction under Section 33-(C)(2) has got to be circumspect before it undertakes an investigation, reminding itself that any investigation it undertakes is, in a real sense, incidental to its computation of a benefit under an existing right, which is its principal concern.
20. In the case of Muncipal Corporation of Delhi Vs. Ganesh Razak and another5, the respondents who were daily rated/causal workers, initiated proceedings under Section 33-C (2), claiming that they were doing the same kind of work as regular employees and were therefore entitled to the same pay as regular employees on the principle of "equal pay for equal work". The Labour Court allowed their claim and writ petitions filed there against were dismissed. In appeals by special leave, the Supreme Court after referring to the various judgments on the issue, held that the Labour Court cannot adjudicate the dispute of entitlement or the basis of claim of the workmen and it could only interpret the award or settlement on which the claim is based its jurisdiction being like that of an executing court. The relevant observations made in the judgment are being extracted below.
"12 ........where the very basis of the claim or the entitlement for the workmen 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 proceeding under Section 33-C(2) of the Act.The Labour Court has no 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 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 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."
21. Observations to a similar effect were made in State Bank of India Vs. Ram Chandra Dubey and Ors.6, which was a case where the Industrial Tribunal had ordered for reinstatement but the award was silent with regard to payment of back wages. The workmen filed an application under Section 33-C (2) whereupon an order was passed by the Tribunal-cum-Labour Court allowing the application and computing the amounts payable to the workmen by way of back wages. Upon the matter being taken up to the Supreme Court the order passed by the Labour Court as affirmed by the High Court was set aside and it was held that jurisdiction of Labour Court under Section 33-C (2) extends to computation of a pre-existing benefit or one flowing from a pre-existing right and not to computation of a benefit which is considered just and fair. The relevant observations made in the judgment are as follows :-
"7. When a reference is made to an Industrial Tribunal to adjudicate the question not only 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 with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.
8. The principles enunciated in the decisions referred by either side can be summed up as follows:
Whenever a workman is entitled to receive from his employer 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 under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. 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 Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed 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 adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all 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 implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages."
22. Reiterating a similar view in the case of State of U.P. and another Vs. Brijpal Singh7 it was held that the difference between a pre-existing right or benefit and one which is considered just and fair is vital, and it is not competent for Labour Court exercising jurisdiction under Section 33-C (2) to entertain a claim which is not based on an existing right but which may appropriately be subject matter of an industrial dispute. Referring to the earlier judgments on the point it was held as follows :-
"13. Thus, it is clear from the principle enunciated in the above decisions that the appropriate forum where question of back wages could be decided is only in a proceeding before a forum to whom a reference under Section 10 of the Act is made. Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein 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 ID Act. Therefore, the Labour Court had no jurisdiction to adjudicate the claim made by the respondent herein under Section 33-C(2) of the ID Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent workman cannot ask the Labour Court in an application under Section 33-C(2) of the ID Act to disregard his dismissal as wrongful and on that basis to compute his wages............"
23. In the case of U.P. State Road Transport Corporation Vs. Birendra Bhandari8, a claim petition filed for payment of arrears relating to difference of salary, leave encashment, DA arising out of recommendations of 5th Pay Commission, was accepted by the Labour Court and a direction was made for payment within a period of two months. The said order was affirmed by the High Court in the writ petition. Upon a challenge being raised, it was held that Section 33-C (2) was not applicable as there was no pre-existing benefit or right available to the workman in this case and the orders passed by the Labour Court and High Court were set aside.
24. The question of maintainability of an application claiming overtime allowance, under Section 33-C (2), where the said claim was disputed by the employer came up for consideration in the case of Union of India and another Vs. Kankuben (Dead) by LRS. and others9, and after discussing the case law on the point the said application was held to be not maintainable.
25. In National Textiles Corporation (Uttar Pradesh), Kanpur Versus Presiding Officer, IV Labour Court, Kanpur, and another10, where a similar claim, as in the present case, had been raised by the workmen claiming difference of pay in respect of a higher post, this Court held that entitlement to a particular post can only be adjudicated in a reference made under Section 10 of the Industrial Disputes Act, 1947, and such a claim could not be entertained under Section 33-C (2). The relevant observations made in the judgment are as follows :-
"5. The right to money which is sought to be calculated or the benefit which is sought to be computed under S. 33-C(2) 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 workman and his employer. The Labour Court cannot entertain a claim which is not an existing right and which could be made the subject-matter of an industrial dispute in a reference under S. 10 of the Act. Where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed and there being no earlier adjudication or recommendation thereof by the employer, a dispute relating to such entitlement which is not incidental to the benefit claimed would be clearly outside the scope of S. 33-C(2) of the Act.
In Tara v. Director, Social Welfare, [(1998) 8 S.C.C. 671], the Supreme Court held that the status and nature of employment of the workman being disputed could not be adjudicated in an application under S. 33-C(2) unless there was a prior adjudication on merit.
6. In the present case, the claim of the workman is one of the entitlement on the post of cashier and consequently the benefit arising out of it. The entitlement on a particular post can only be adjudicated under S. 4-K of the U.P. Industrial Disputes Act or under S. 10 of the Industrial Disputes Act. This type of claim cannot be adjudicated under S. 33-C(2) of the Act. Consequently, the impugned order of the Labour Court passed under S. 33-C(2) cannot be sustained and is quashed. The writ petition is allowed."
26. The legal position which thus emerges is that the benefit which can be enforced under Section 33-C (2) must be a pre-existing benefit or one flowing from pre-existing right, and in an application filed under the said provision, relief can be granted only if the right had been recognized already and the benefits flow from such recognition and not otherwise. The Labour Court's jurisdiction under Section 33-C (2) is only in respect of computation of the monetary benefit which a workman is entitled to receive from the employer and powers can be exercised only in a case where the entitlement to the claim is not disputed. In a case where the claim of the workman involves adjudication of a dispute, the Labour Court cannot assume jurisdiction to first determine the entitlement and then to make the computation.
27. It may thus be inferred that an application filed for computation of difference of wages in respect of a claim for a promotional post, in the absence of any promotion having been granted, would essentially involve adjudication of a dispute regarding entitlement, which would be beyond the scope of the jurisdiction of the Labour Court under Section 33-C (2) of the Industrial Disputes Act, 1947, and would not be maintainable.
28. In view of the foregoing discussion, the claim sought to be raised in the present case for computation of an amount which would have been admissible to the petitioner had he been granted promotion to the higher post, would not fall within the ambit and scope of the powers under Section 33-C (2). The claim being not based on any pre-existing benefit or flowing from pre-existing right, the necessary preconditions for invocation of powers of the Labour Court under Section 33-C (2) did not exist, and as such the Labour Court has rightly rejected the claim.
29. Counsel for the petitioner has not been able to point out any material error or infirmity in the order passed by the Labour Court so as to warrant inference.
30. The writ petition is devoid of merits and is accordingly dismissed.
Order Date :- 23.7.2019 Pratima (Dr.Y.K.Srivastava,J.)