ORDER Anjani Kumar, J.
1. The employer-petitioner aggrieved by an order passed by the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Kanpur, U. P. dated 5th May, 1988, copy whereof is appended as Annexure-5 to the writ petition, allowing the application of the workman concerned under Section 33C(2) of the Industrial Disputes Act. 1947 (Central Act), hereinafter referred to as the Act, approached this Court by means of present writ petition under Article 226 of the Constitution of India.
2. The fact as emerges from the writ petition as well as from the order impugned in the present writ petition is that the workman-respondent was working with the employer-Bank as Cashier at Mau Nathbhanjan Branch. Thereafter on 20th December. 1978. he was suspended and during the period of suspension, he was paid subsistence allowance, as would be clear that this suspension order was recalled vide order dated 24th September, 1981. The operative portion whereof is as under :
"His suspension from the Bank's service shall stand vacated from the date he reports to the Regional Manager.
This is without prejudice to the Management's right to proceed with disciplinary action at appropriate time."
3. It is admitted case of the parties that no disciplinary proceedings has been initiated or conducted against the workman concerned. The workman concerned therefore, filed an application, as stated above, under Section 33C(2) of the Act.
4. Sri Vija Ratan Agrawal, learned counsel appearing on behalf of the employer-petitioner contended that in view of the decision in Union of India v. Rajiv Kumar, 2003 (4) AWC 3020 (SC) : 2003 (3) SCCD 936 : 2003 (IV) ESC 596 (SC) ; Municipal Corporation of Delhi v. Ganesh Razak and Anr., 1995 (1) LLJ 395 (SC) and Allahabad Bank and Anr. v. Deepak Kumar Bhola, JT 1997 (3) SC 539, the Tribunal has erred in law in allowing the application under Section 33C(2) of the Act of the workman concerned. He placed reliance on the case of Municipal Corporation of Delhi v. Ganesh Razak and Anr., 1995 (1) LLJ 395 (SC), wherein the three Judges Bench of the Supreme Court has held as under :
"The power of the labour court under Section 33C(2) extends to interpretation of the awards or settlements on which the workmen's right rests, like the executing court's power to interpret the decree for the purpose of the execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer.........
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."
5. In the present case, this proposition is not applicable because it is admitted case that after revoking the suspension and re-instatement, no disciplinary proceeding has yet been initiated, though the workman concerned was re-instated way back in the year 1981 and the finding recorded by the Tribunal. In this regard, has neither been assailed, nor has been demonstrated to be perverse. To me it appears that it is not a fit case in which this Court should exercise its power under Article 226 of the Constitution of India.
6. In view of what has been stated above, this writ petition has no force and is accordingly dismissed. The interim order, if any, stands Vacated. However, on the facts and circumstances of the case, the partie shall bear their own costs.