JUDGMENT Rajes Kumar, J.
1. By means of the present writ petition, petitioner has challenged the award dated 11.11.1998 passed by Presiding Officer Labour Court (IV), Kanpur under Section 33-C(2) of U.P. Industrial Dispute Act (hereinafter referred to as "Act") awarding a sum of Rs. l7,795.64p. towards Dearness Allowance/Variance Dearness Allowance (hereinafter referred to as "DA/VDA ").
2. Heard Ms. Kritika Singh, Advocate holding brief of Sri V.B. Singh, learned Senior Advocate appearing for the petitioner and Sri K.P. Agarwal, learned Senior Advocate assisted by Ms. Sumati Rani Gupta, learned Counsel for the respondent.
3. Respondent No. 3 filed an application under Section 33-C (2) of U.P. Industrial Dispute Act (hereinafter referred to as "Act") for DA and VDA. Petitioner filed the written statement stating therein that the DA and VDA was paid on pay scale of Rs. 600-1250 and the additional claim for Rs. 17,795.64p. was not justified. Labour Court, however, vide order dated 11.11.1998 allowed the application and held that the petitioner was entitled for the claim of Rs. l7,795.64p. towards DA/VDA besides Rs. 400/- towards cost, which is impugned in the present writ petition.
4. Learned Counsel for the petitioner submitted that the DA and VDA, which is applicable to pay scale of Rs. 600-1250 has been paid to the petitioner and for any further DA and VDA petitioner is not entitled and his claim of entitlement has not yet been adjudicated. He submitted that without adjudication of the entitlement to the claim of additional benefit it can not be computed under Section 33-C (2) of the Act. He submitted that the claim can not be adjudicated under Section 33-C(2) of the Act.
5. Learned Counsel for the petitioner submitted that the provisions of Section 33-C (2) of the Act can be invoked only in a situation when there is entitlement of the respondent No. 2 for the benefit. In other words there must be pre-existing right of the workman to claim the benefit. He submitted that if the entitlement has not been adjudicated and there is dispute about the same, such claim can not be allowed under Section 33-C (2) of the Act. He submitted that Section 33-C (2) of the Act is applicable only in a case where the claim of benefit has already been adjudicated and settled in respect thereof and only computation is required to be made and the dispute as such can not be adjudicated. He submitted that under Section 33-C (2) of the Act Labour Court act as an Execution Authority and while acting as an execution authority can only compute the benefit and if situation arises can also interpret the award or any order by virtue of which the claim is made. He submitted that in the present case the respondent No. 2 has opted for Swadeshi Pay Scale on IDA pattern at Rs. 600-1250 and the same has been accepted by Labour Court vide order dated 19.12.1987 and the Writ Petition filed against the said order has been dismissed. Respondent No. 2 has been paid DA and VDA on pay scale of Rs. 600-1250 and unless his additional claim is being adjudicated, he is not entitled to get any additional DA and VDA as claimed. He submitted that in respect of such claim, there was no adjudication order or any scheme or provisions. Thus, there was no pre-existing right in respect thereof and claim could not be allowed under Section 33-C (2) of the Act. In support of his claim, he relied upon the decisions in the case of Municipal Corporation of Delhi v. Ganesh Razak and Anr. reported in 1995 (1) SC 235, Adarsh Gahmar Sadhan Sahkari Samiti Ltd. v. The Labour Court, U.P., Varanasi and Ors. reported in 2000 (86) FLR 859, State Bank of India v. Ram Chandra Dubey and Ors. reported in AIR 2000 SC 3734, State of U.P. and Anr. v. Brijpal Singh .
6. Learned Counsel for the respondent No. 2 submitted that it is not correct to say that under Section 33-C (2) of the Act Labour Court is completely debarred to examine the claim. He submitted that under Section 33-C (2) of the Act power is wider than Section 33-C (1) of the Act and the Labour Court while calculating the benefit can also examine the claim. In support of this contention, he relied upon the decision of Apex Court in the case of The Central Bank of India Ltd. v. P.S. Rajagopalan etc. , (Para 15 and 16), Shri Ambica Mills Co. Ltd. v. Shri S.B. Bhatt and Anr. , (Para 12), Chief Managing Engineer, East India Coal Co. Ltd. v. Rameshwar and Anr. reported in 1968 S.C.R. (Vol.1), 140.
7. Section 33-C (1) and (2) of the Act reads as follows:
33C. Recovery of money due from an employer.- (J) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of the workman himself or any other person authorized by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:
Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:
Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.
(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.
8. Section 33-C (2) of the Act came up for consideration before the Apex Court as well as before the High Court number of times, In the case of The Central Bank of India Ltd. v. P.S. Rajagopalan etc. (Supra), Apex Court held as follows:
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 recognized 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 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 33C. Similarly, having regard to the fact that the policy of the Legislature in enacting Section 33C 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 33C 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 34C.
Let us then revert to the words used in Section 33C(2) in order to decide what would be its true scope and effect on a fair and reasonable construction. When Sub-section (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not dispute by the employer ? According to the appellant, the scope of Sub-section (2) is similar to that of Sub-section (1) and it is pointed out that just as under Sub-section (1) any disputed question about the workmen's right to receive the money due under an award cannot be adjudicated upon by the appropriate Government, so under Sub-section (2) if a dispute is raised about the workmen's right to receive the benefit in question, that cannot be determined by the Labour Court. The only point which the Labour Court can determine is one in relation to the computation of the benefit in terms of money. We are not impressed by this argument. In our opinion, on a fair and reasonable construction of Sub-section (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of Sub-section (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The Clause "Where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit". The appellant's construction would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by Sub-section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under Section 33C (2) clearly postulates that the determination of the question about computing the benefit 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). As Maxwell has observed "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution". We must accordingly hold that Section 33C (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 the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under Sub-section (3), the Labour Court should have been authorized to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under Sub-section (2). On the other hand, Sub-section (3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under Sub-section (2).
9. In the case of Shri Ambica Mills Co. Ltd. v. Shri S.B. Bhatt and Anr., (Supra), Apex Court held as follows:
The scheme of the Act is clear. The act was intended to late the payment of wages to certain classes of persons employed in industry, and its object is to provide for a speedy and effective remedy to the employees in respect of their clams arising out of illegal deductions or unjustified delay made in paying wages to them With that objection Section 2 (vi) of the Act has defined wages. Section 4 fixes the wage period. Section 5 prescribes the time of payment of wages; and Section 7 allows certain specified deductions to be made. Section 15 confers jurisdiction on the authority appointed under the said section to hear and decide for any specified area claims arising out of deductions from wages, or delay in payment of wages, of persons employed or paid in that area. It is thus clear that the only claims which can be entertained by the authority are claims arising out of deductions or delay made in payment of wages. The jurisdiction thus conferred on the authority to deal with these two categories of claims is exclusive, for Section 22 of the Act provides that matters which lie within the jurisdiction of the authority are excluded from the jurisdiction of ordinary civil courts. Thus in one sense the jurisdiction conferred on the authority is limited by Section 15, and in another sense it is exclusive as prescribed by Section 22.
10. In the case of Chief Managing Engineer, East India Coal Co. Ltd. v. Rameshwar and Anr. reported in 1968 S.C.R. (Vol. 1), 140, Apex Court held as follows:
It is clear 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. Since the scope of Sub-section 2 is wider that that of Sub-section 1 and the sub-section is not confined to cases arising under an award, settlement or under the provisions of Chapter VA, there is no reason to hold that a benefit provided by a statute or a Scheme made thereunder, without there being anything contrary under such stature or Section 33C (2), cannot fall within Sub-section 2. Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 which remains to be computed must fall under Sub-section 2 and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer. The contention that the Labour Court had no jurisdiction because the claim arose under the said scheme or because the benefit was monetary or because it involved any substantial question between the Company and the workmen must, in view of the said decisions, fail.
11. In the case of Municipal Corporation of Delhi v. Ganesh Razak and Anr. (Supra), the workmen were all daily wagers. Their claim of same wages as of regular workers had not been earlier settled by adjudication or recognition by the employer, however, they claimed equal pay for equal work under Section 33-C (2) of the Act. Apex Court held that the workmen claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of "equal pay for equal work" being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C (2) of the Act, The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought.
12. Apex Court held 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 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 recognized by the employer and thereafter for the purpose of implementation enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C (2) of the Act like that of the Executing Court's power to interpret the decree for the purpose of its execution. The power of the Labour Court under Section 33-C (2) of the Act extends to interpretation of the award or settlement on which the workman's right rests. Apex Court has also considered the decision in the case of Central Bank of India Ltd. v. P.S. Rajagopalan (Supra), referred hereinabove.
13. In the case of Central Inland Water Transport Corporation Ltd. v. Workmen , it was held that with reference to the earlier decisions that a proceeding under Section 33-C (2) being in the nature of execution proceeding, it would appear that an investigation of the alleged right of re-employment is outside its scope and the Labour Court exercising power under Section 33-C (2) of the Act cannot arrogate to itself the functions of adjudication of the dispute relating to the claim of re-employment. Distinction between proceedings in a suit and execution proceedings thereafter was pointed out. It was indicated that the plaintiff's right to claim relief against the defendant involves an investigation which can be done only in a suit and once the defendant's liability had been adjudicated in the suit, the working out of such liability with a view to give relief is the function of an execution proceeding.
14. In the case of State Bank of India v. Ram Chandra Dubey and Ors. reported in AIR 2000 SC 3734, Apex Court held as follows:
The principles enunciated in the decisions referred by either side can be summed up as follows:
Whenever a workman is entitled to receive from Ins 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 33C (2) of the Act. The benefit sought to be enforced under Section 33C(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 33C (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 workmen 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.
15. In the case of State of U.P. and Anr. v. Brij Pal Singh , Apex court held as follows:
It is well settled that the workman can proceed under Section 33-C (2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages (P) Ltd. v. Suresh Chand held 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 the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceedings to compute the benefit in terms of money. Proceeding further, this Court held that 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, clearly adjudicated upon or provided for an must arise in the course of and in relation to the relationship between the industrial workman, and his employer. This Court further held as follows:
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.
16. In the case of National Textiles Corporation (U.P.) Ltd., Kanpur v. Presiding Officer, Labour Court, IV U.P. reported in 2006 (1) A.L.J. 421, the claim for grant of pay scales in accordance with 4th and 5th pay commission in the absence of prior adjudication or determination of entitlement has been refused under Section 33-C (2) of the Act. This Court held as follows:
It is undisputed that the power under Section 33-C (2) is akin to that of an Executing court. Where the very basis of the claim or entitlement is bonafidely disputed and there is no earlier adjudication or recognition of the right by the employer, power under Section 33-C (2) cannot be exercised. A three Judges Bench judgment of Apex Court in the case of Municipal Corporation of Delhi v. Ganesh Razak while considering a claim of equal pay for equal work held that adjudication on the question of "equal work" cannot be said to be incidental to the benefit claimed. Even earlier the Apex Court in the case of P.K. Singh v. Presiding Officer has taken the same view.
However, learned Counsel for the respondent has laid great stress upon another decision of the Apex Court of Central Bank of India Limited v. P.S. Rajagopalan to contend that such a relationship of master and servant can incidentally be considered by the authority while exercising powers under Section 33-C (2). It may be worthy to note that the Apex Court in the Municipal Corporation of Delhi (supra) has considered the decision of Rajagopalan's case (supra) and held that the said case was an authority for the difference in the scope of Section 36-A and 33-C (2) and likened it to the power of Executing Court which could interpret an award or settlement but it does not extend to the dispute of entitlement when there is prior adjudication.
17. From the reading of the aforesaid decision, in my opinion, the following principles has been enunciated relating to the scope of Section 33C (2) of the Act; (a) Section 33C(2) of the Act is wider than Section 33C (1) of the Act. The Labour Court acts as execution Court; (b) There must be entitlement to the claim. It means that there must be pre-existing right in respect of claim. Pre-existing right must flow from some award, order, statute etc. The incidental issue relating to the computation can be considered and examined namely, if situation arises the effect of the award can be interpreted. Labour Court can not adjudicate the disputed claim. The disputed claim can be adjudicated only in a reference under Section 10 of the Act or in any other proceeding.
18. In the present case, respondent No. 2 has opted for Swadeshi Pay Scale on IDA pattern at Rs. 600-1250 and the same has been accepted by the Labour Court vide order dated 19.12.1987 and the writ petition filed against the said order has been dismissed. Respondent no.2 has been paid DA and VDA on pay scale of Rs. 600-1250 and there is no dispute in this regard. The claim of additional DA and VDA is not based on any award or any order or in any statutory provisions. Unless the additional claim is being adjudicated, he is not entitled to get any additional DA and VDA claim. Thus, it is disputed whether the respondent No. 2 was entitled for DA and VDA and requires adjudication. Such adjudication can not be done under Section 33C (2) of the Act. It is not a case of computation alone. It can not be said to be incidental to the computation of the DA and VDA. Computation of the DA and VDA depend upon the adjudication of entitlement, which requires adjudication. Thus, there was no pre-existing right to be claimed either by award or by order or statute or any provision on the basis of which computation to be made. Thus, in my opinion, Presiding officer has erred in awarding the relief under Section 33C (2) of the Act and the order of the Presiding Officer is liable to be set aside.
19. It may be mentioned that following interim has been passed on 10th February. 1999:
In the meantime, recovery proceedings in pursuance of the impugned order dated 11.11.1998 shall remain stayed provided the petitioner deposits a sum of Rs. 18,000 (Rupees Eighteen Thousand) with the respondent No. l within one month from today. If the amount is so deposited by the petitioner, half of the same shall be forthwith released by the respondent No. l in favour of respondent No. 3 and the balance amount shall be kept in some interest oriented Fixed Deposit Scheme of a Nationalized Bank and it shall be subject to the decision in this writ petition. In the event of failure of the petitioner to comply with the aforesaid direction of depositing Rs. 18000 within a month from today, this stay order shall automatically stand discharged.
20. Thus, in the interest of justice, it is directed that in pursuance of the aforesaid order, if any amount has been paid to the respondent No. 3, the same may not be recovered but no further amount will be paid to the respondent No. 3. The amount invested in the F.D. deposit alongwith the interest shall be released to the petitioner.
21. In the result, writ petition is allowed. Order dated 11.11.1998 passed by Presiding Officer Labour Court (IV), Kanpur is set aside with the above observation.