JUDGMENT S.C. Verma, J.
1. These petitions arc directed against the order dated 7.9.1 98 5 passed by the Presiding Officer, Central Government Labour Court, Kanpur allowing the applications of the workman under Section 33-C(2) of the Industrial Disputes Act, hereinafter referred to as the Act.
2. The retired officials of the Bank who claimed to be workman made their claim for i payment of special allowance to be added to their pension in accordance with the bi-partite settlement. There was a third bi-partite settlement in respect of the pay, dearness allowance, city compensatory allowance, house rent allowance, special allowance, medical aid etc. The subject of matter of settlement has been quoted in paragraph (ix) of the Memo of Settlement which is reproduced below:
"(ix) The parties, however, held bilateral negotiations and have arrived at a settlement in respect of scales of pay, Dearness Allowance, City Compensatory Allowance, House Rent Allowance, Special Allowances, Medical Aid, Provident Fund and have further agreed on the modalities of resolving the other demands not settled under this Memorandum of settlement as also the issue raised on behalf of the said Banks by the Indian Bank's Association.
3. The subject matter of special allowance has been dealt within paragraph 6, sub-paragraph V which is quoted below: -
"V. Special, allowance.- Without prejudice to the IBA's issue in regard to various aspects of special allowance, the existing special allowance will be refixed on the basis of 100% merger both for the sub-staff and the clerical staff. In respect of clerical staff the D.A. payable on the special allowance at CPI 332 (1969 = 100) would be added to this amount and the revised special allowance will be fixed accordingly. Tables showing the special allowance as revised are given in Schedule n. In respect of clerical staff this special allowance so consolidated will not rank for Dearness Allowance as from the date of effect. Of this amount, only 63.5% shall be counted as 'pay' for all other purposes including for purpose of superannuation benefits''.
4. The respondents in their application under Section 33-C(2) claimed that besides the Basic pay as per scale of pay the employees were granted certain special allowance by way of promotion for the purpose of performing various special duties with higher risks and responsibilities. The respondents being Special Assistants were drawing Rs. 283/- as Special Assistant Allowance as admissible under, third Bipartite settlement under paragraph 6, sub-paragraph V. The respondents thus claimed Special Allowance of Rs. 173/- to be added to their Basic Pay of Rs. 1,040/-. They claimed a sum of Rs. 2,441.92 payable to them for 29 months from the date of the pension i.e. 7.10.1979 to 28.2.1982.
5. The petitioner Bank Management contested the claim and alleged that the claim of the petitioner under Section 33-C(2) is not maintainable as the nature of the alleged dispute is liable to be resolved under Section 10(2) and is not a benefit computable under Section 33-C(2).
6. The main controversy which was raised before the Labour Court, before this Court is as to whether the claim of the petitioner as contained in the application under Section 33-C(2) of the Act is a money or benefit capable of being commuted in terms of money or is a dispute which requires adjudication under Section 10 of the Act. The Labour Court in accordance with Rule 6 of the Terms of Settlement as contained in sub-paragraph V, was of the view that superannuation benefit comprised of Provident Fund, Gratuity and Pension. For the purposes of calculation of pension 63.5 per cent of the Special Pay was also reckoned and the total amount so arrived will be added on which the pension had to be calculated. The Labour Court directed the parties to submit a chart for computation of final amount payable.
7. The learned counsel for the petitioner submitted that the respondent No. 2, on retirement, opted for pension scheme of the petitioner instead of Gratuity Scheme under which the calculation of the amount of pension is made on the basis of average monthly basic pay drawn during 12 months immediately preceding the date of retirement. The learned counsel submitted that the expression 'pay' for the purposes of calculating Gratuity shall be the average of basic pay and Special Allowance and officiating Allowance payable during 12 months preceding death, disability, retirement, resignation or termination of service, as the case may be. According to him, the expression 'pay' as contained in the Gratuity Scheme encompasses within itself all the abovementioned components of the emoluments whereas the expression "Basic Pay" as indicated in the Pension Scheme is merely one of the components of the word 'pay'. The learned counsel also submitted that in the Third Bi-partite Settlement, the question of Pension Scheme was not a part of negotiation and the pension rules or the Pension Scheme remained the same. In my opinion, this argument of the learned counsel for the petitioner cannot be accepted in view of very clear averments made in the settlement itself which is quoted below:
"In respect of clerical staff, this special allowance so consolidated will not rank for Dearness Allowance as from the date of effect: Of this amount, only 63.5% shall be counted as pay for all other purposes including for purposes of superannuation benefits".
8. Thus it is clear that the required percentage of special allowance shall be counted as pay for purposes of superannuation benefits irrespective of the classification of Pension Scheme or gratuity Scheme. The use of the word 'pay' aforesaid cannot be treated differently for the expression 'Basic Pay' and 'pay'. The percentage of special allowance thus has to be added to the superannuary benefits, in case the special allowance has been received by a workman.
9. The second leg of the argument of the learned counsel for the petitioner that the scope of the provisions of Section 33-C(2) does not take within its ambit adjudication as to whether the workmen would be entitled to inclusion of Special Allowance in the Pension Scheme. The Bank Management has denied their liability and the claim of the workmen in accordance with the terms of Bi-partite Settlement. The provisions of Section 33-C(2) are quoted below:
"(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''.
10. These provisions have been considered in various decisions of the Supreme court. Reference may be made to the Central Bank of India Limited v. P.S. Rajagopalan etc. 1963 (2) LLJ 89 (SC) wherein it has been held as under:
"Though in determining the scope of Section 33-C Industrial Disputes Act care must be taken not to exclude cases which legitimately fall within its purview, it must also be borne in mind that cases which fall within Section 19(1) of the Act for instance, cannot be brought within the scope of Section 33-C."
Where Sub-section (2) of Section 33-C refers to any workman entitled to receive from the employer any benefit there specified, it does not mean that he must be a workman whose right to receive the said benefit is not disputed by the employer. Section 33-C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to benefit on which their claim is based is disputed by their employers. The claim under Section 33-C(2) clearly postulates that the determination of the question about computing the benefits in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub-section (2).
For the purposes of making necessary determination under Section 33-C(2), it would in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests. When the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the executing Court to interpret the decree for the purpose of execution. It is of course, true that the executing Court cannot go behind the decree, nor can it add to or substract from the provision of the decree. These limitations apply also to the Labour Court, but like the executing Court, the Labour Court would also be competent to interpret the award or settlement of which a workman bases his claim under Section 33-C(2)."
11. In Central Inland Water Transport Corporation Ltd. v. The Workman and Anr. 1975 (2) Lab LJ 117 it has been held by the Hon'ble Supreme Court as under:
"A proceeding under Section 33-C(2) is a proceeding generally in the nature of an execution proceeding wherein 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 a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiffs' right to relief; (ii) the corresponding liability of the defendant, including as to whether the defendant is, at all liable or not and (iii) the extent of defendant's liability, if any. The working out of which 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 defendants liability may some time be left over for determination in execution proceedings. But that is not the case with the determination under heads (i) and (ii). 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 determination (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'. 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 function 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 the computation. The computation itself is consequential upon the subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal".
12. Applying the law laid down in the aforesaid decision and on examination of the terms of the Third Bi-partite Settlement, it is abundantly clear that 63.5% of the Special Allowance has been agreed to be counted as pay for purposes of superannuation benefits. In my opinion, irrespective of the pension scheme or the Gratuity Scheme to which the workmen might have opted, they would be entitled to the required percentage of Special allowance to be added to be benefits after retirement i. e. the pension. No adjudication for entitlement of this amount is required to be made in view of the aforesaid settlement. The respondents workmen have only enforced and executed their existing rights under the settlement. Merely because the workman's right to receive the benefits is disputed, the Labour Court cannot decide the question as to whether the workman has a right to receive that benefit or not. The Labour Court has to deal with the question as to whether the workman has right to receive the benefit as alleged by him or not. It is only after this question is answered in favour of the workman, the next stage of making the necessary computation arises. The claim under Section 33-C(2) clearly postulates that the determination of the question about computing the benefit in terms of money made in similar cases had to be proceeded with an enquiry into the existence of the right and such enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub-section (2). The claim of the petitioner on the basis of Bi-partite Settlement has been found to be existing by the Labour Court on necessary enquiry into the matter and thereafter the computation has been done.
13. The respondent No. 1 has not committed any manifest error of law in allowing this benefit and calculating the amount to which the workman was entitled on the basis of special allowance actually received.
14. For the aforesaid reasons, I do not find that mere is any error apparent or error or jurisdiction in the impugned order passed by the Presiding Officer, Central Government Labour Court, Kanpur. The petitions have no merit and are accordingly dismissed. Petition dismissed.