JUDGMENT Anjani Kumar, J.
1. The petitioner-employer aggrieved by the award of the Central Government Industrial Tribunal-cum-Labour Court, Kanpur Nagar, passed in L.C.A. No. 292 of 1996 filed by the respondent No. 2 workman under Section 33C(2) of the Industrial Disputes Act, which has been allowed by the respondent No. 1 vide its order dated 12th January, 1998 (Annexure-12 to the writ petition) in favour of workman, has approached this Court by means of this writ petition under Article 226 of the Constitution of India.
2. Heard learned counsel for the parties.
3. The facts leading to the filing of the present writ petition are that the respondent No. 2 workman filed an application purporting to be an application under Section 33C(2) of the Industrial Disputes Act, 1947 (Central) for computation of Rs. 42,450 as arrears of wages, which, according to the applicant, namely, workman concerned, had not been paid being the wages for the period in dispute. It is not disputed that the workman claimed wages for the period when the workman concerned was transferred from Agra to Gwalior where he did not join pursuant to the transfer order and preferred an Original Application No. 516 of 1995 before the Central Administrative Tribunal, Allahabad, wherein the relief claimed was the same, namely, wages with effect from 19th July, 1995 to 18th October, 1996, total comes to Rs. 42,450. During the pendency of this original application, there was an interim order and in pursuance whereof the workman, as the case set up, did not join at Gwalior. Ultimately, this original application was dismissed and during the pendency of the original application before the Central Administrative Tribunal, (for short CAT), Allahabad, the petitioner preferred a contempt petition which has also been dismissed, and thereafter the workman concerned has filed an application, as stated above, under Section 33C(2) of the Industrial Disputes Act, 1947 (Central), hereinafter referred to as the 'Act'. This application under Section 33C(2) of the Act has been allowed and the Presiding Officer of the Central Government Industrial Tribunal-cum-Labour Court, Kanpur, has directed for payment of a sum of Rs. 42,450.
4. Learned counsel for the petitioner has submitted that in view of the long litigation before the CAT, this application under Section 33C(2) of the Act is not maintainable and ought to have been rejected. For this purpose, the learned counsel for the petitioner has relied upon the decision of Madras High Court in C.A. Balakrishnan v. Commissioner, Corporation of Madras. ASR 2003 Mad 170.
5. I have gone through the aforesaid judgment. The facts of the case show that case has arisen out of proceeding of suit and, thereafter, the writ petition was filed which was dismissed on the ground that the matter once taken up in a suit cannot be permitted to be re-agitated in a proceeding under Article 226 of the Constitution of India. There is no dispute in the aforesaid proposition but the present writ petition arises out of proceeding under the Industrial Disputes Act. Therefore, in my opinion, the law relied upon by the learned counsel for the petitioner is not applicable to the present case. Learned counsel for the petitioner has laid much emphasis that the conduct of the petitioner has to be seen that he first took his chance before the CAT and on the strength of the interim order, he filed even a contempt petition, which was, ultimately, dismissed. Thereupon, he filed the present application in a proceeding under the provisions of Section 33C(2) of the Act, as stated above.
6. Learned counsel for the petitioner has further stated that the relief sought in the proceeding before the CAT and the relief sought before the Industrial Tribunal was precisely the same, namely, the wages for the period in dispute. Therefore, the respondent-workman is, in fact, abusing the process of the Court and the application deserves to be dismissed on this ground alone.
7. As already held that the application cannot be rejected on this ground that after the litigation before the Central Administrative Tribunal, the workman has taken recourse to Industrial Disputes Act.
8. However, after going through the application filed and the order impugned in the present writ petition, in my opinion, this writ petition deserves to be allowed on the short question that proceeding under Section 33C(2) of the Act are in the nature of execution which requires a pre-determined amount and there shall not be any dispute with regard to the same. From the controversy in the present case and from the averments made by the petitioner-employer. It is abundantly clear that the employer has categorically set up the case that in view of the fact that the workman concerned having not objected the transfer order and had not joined at the place where he was transferred, he cannot claim wages for the same period, particularly when there is nothing on record to demonstrate that this transfer order is either reversed or that the petitioner has joined immediately after the transfer order is passed. That being the factual position, it is a clear case of dispute being raised regarding the eligibility of the workman for the amount for which computation was sought under Section 33C(2) of the Act.
9. In this view of the matter, the respondent No. 1 has categorically fell in error in directing the computation and payment of amount of Rs. 42,450 as prayed for by the workman. The labour court should have rejected the application on the ground that there is no re-determined sum and particularly in view of the dispute regarding the workman entitlement to the wages for the period in dispute, atleast an application under Section 33C(2) of the Act cannot be said to be maintainable in view of the settled law laid down by the Apex Court.
10. In view of what has been stated above, this writ petition deserves to be allowed on the ground referred to above and the order of the labour court dated 12th January, 1998, deserves to be quashed and is hereby quashed. The application filed by the workman under Section 33C(2) of the Act is held to be not maintainable. However, in the facts and circumstances of the case, it will be open to the workman to take such recourse of law as are open to him.
11. The writ petition succeeds and is allowed. The order of the labour court dated 12th January, 1998 (Annexure-12 to the writ petition) is quashed and the application filed by the workman under Section 33C(2) of the Act is held to be not maintainable. However, it will be open to the workman to take such recourse of law as are open to him. There will be no order as to costs.