JUDGMENT R.R.K. Trivedi, J.
1. Aforesaid writ petitions have been filed challenging the order dated 18th May, 1994 passed by the Labour Court-II, U. P., Ghaziabad by which five cases, namely, Misc. Case Nos. 108 of 1986. 110 of 1986. 111 of 1986. 112 of 1986 and 113 of 1986 under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'Act') were decided in favour of workmen. Civil Misc. Writ Petition No. 5743 of 1995 shall be the leading writ petition in which the arguments have been made by the learned counsel for the parties. I have heard Sri A. K. Misra, learned counsel for the petitioner and Sri Vinod Sinha learned counsel appearing for workmen.
2. The facts giving rise to this writ petition are that the workmen Sohan Pal Singh. Sohan Lal, Har Saran Singh, Ant Ram and Kunwar Pal Singh were employed as permanent Seasonal Clerks in Kisan Sahkari Chini Mills Ltd.. Anupshahr, district Bulandshahr. By order dated 22nd November, 1982 on certain allegations, they were suspended. It appears that some amount was embezzled and petitioner Immediately initiated actions against suspended employees. In 1986, aforesaid workmen filed applications under Section 33C(2) of the Act raising grievances that they were not being paid their subsistence allowance. In response to the notice Issued to the aforesaid application, petitioner appeared and filed objection, inter alia, on the ground that these workmen were dismissed from service on 29th November. 1982 and hence they are not entitled for subsistence allowance. In support of their respective cases, both the parties filed their written statement as well as documents. It also appears that after filing the documents and written statement, a default was committed on the part of the petitioner as no body appeared before Labour Court. The Labour Court proceeded ex parte against the petitioner. An application was filed for setting aside the order passed ex parte which was also rejected on 17.2.1994. The Labour Court heard the arguments of both the parties and passed order dated 18.5.1994 directing the petitioner to pay the amount Indicated in the order to the five employees aggrieved by which this writ petition has been filed.
3. Learned counsel for the petitioner has submitted that along with written statement eight documents filed which have been noticed in the order out of which five documents were the certified copies of the written statement filed by the aforesaid workmen in the suit filed against them for the recovery of the amount which was embezzled by them and thus certified copies required no proof and could be read in evidence. These documents were filed on 8th April. 1987, i.e.. before the order to proceed ex parte passed against petitioner was passed. The Labour Court committed a serious illegality in not considering these documents which contained admission on the part of the petitioner that they were paid of from the service. Learned counsel for the petitioner has further submitted that as continuance of the workmen in the employment after 29th November, 1982, was a disputed fact, it was not open to the Labour Court in proceedings under Section 33C(2) of the Act directing payment of the subsistence allowance after the date of dismissal which was not challenged in appropriate proceedings. Learned counsel has placed reliance in case of Central inland Water Transport Corporation Ltd. v. Workmen and another, 1974 (29) FLR 56 (SC) and Municipal Corporation of Delhi v. Ganesh Razak and another. 1995 SCC (I & S) 296. Learned counsel has submitted that the order of the Labour Court ignoring the order of dismissal dated 29th November. 1982, is wholly illegal and without jurisdiction.
4. Sri Vinod Sinha. learned counsel appearing for the respondents workmen, on the other hand, submitted that a bare perusal of the order dated 29th November. 1982. will show that it was wholly illegal and arbitrary order passed without holding any domestic enquiry and such order was liable to be ignored and the petitioner cannot be allowed to take the benefit of the same. It has also been submitted that the amendment applications have been made in the suit to withdraw the alleged admission in the written statement and also challenging the existence of the order of dismissal and the alleged admission cannot validate the order of dismissal passed in violation of the mandatory provisions of the standing order.
5. I have thoroughly considered the rival submissions made on behalf of the learned counsel for the parties, the scope of the proceedings under Section 33C(2) of the Act. has been considered by Hon'ble Supreme Court in number of decisions. In paragraph No. 12 of judgment in case of Municipal Corporation of Delhi (supra). Hon'ble Supreme Court has held as under:
"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 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 33C(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 33C(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 33C(2) like that of the executing court's power to interpret the decree for the purpose of its execution."
In case of Central Inland Water Transport Corporation Ltd. (supra) Hon'ble Supreme court has held as under :
"It is now well-settled that a proceeding under Section 33C[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 workmen 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."
6. Thus, it cannot be disputed that if petitioner came with a case that the workmen who fp'tiated proceedings under Section 33C(2} were dismissed from service, it was not open to Labour Court to award any amount either as salary of subsistence allowance after date of order of dismissal. The appropriate course for the workmen was to Initiate the proceedings for challenging the order of dismissal. Labour Court has held In the Impugned order that the order dated 29th November, 1982, was not communicated to the workmen, hence it cannot be taken notice of and the workmen continued in employment. In my opinion, on this count also, the Labour Court committed an error of law in not considering the certified copies of the written statements filed by petitioner to establish that the workmen were fully aware of the order of dismissal passed against them, and pleaded the same as defence in the suit filed against them to recover the amount of embezzlement. The certified copies were filed much before the order dated 1st July, 1992. They should have been considered as evidence in support of the written statement. The order dated 29th November, 1982. by which workmen were dismissed, was also on record. The Labour Court could have considered the legal position as to whether such an order could be held to an order void ab initio and could be ignored under the proceedings under Section 33C(2) or it had the effect of discounting the relationship of the employer and employee and continued to have the same effect until set aside by the appropriate court or authority. In my opinion, the Labour Court failed to consider these vital aspects of the case. The matter requires reconsideration.
7. For the reasons stated above, the above writ petitions are partly allowed. The order dated 18th May, 1994, is quashed. The proceedings shall stand revived. They shall be considered and decided afresh by the Labour Court in accordance with law and in the light of the observations made above. As matter is old the Labour Court is directed to decide the case within six months from the date a copy of this order is filed before it.