JUDGMENT O. P. Garg, J.
1. These are nine writ petitions in which common questions of law and facts have been raised. The respondent No. 2 in each one of the nine writ petitions (hereinafter referred to as the 'employee') were employees of the petitioner-U. P. State Electricity Board (for short 'Board'). All of them have retired. They have filed separate applications under Section 33 (2) of the U. P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') for computation of the amount of their pension/gratuity or both on the ground that the petitioner-Board had passed an order on 21.6.1991 whereby the U. P. Retirement Benefit Rules, 1961 and the new Family Pension Scheme of 1965 as applicable to the State Government Employees were adopted. According to the employees, they were unlawfully denied the benefit of the aforesaid Rules and the Scheme and that they were entitled to pensionary benefits and/or gratuity. The position of the respondent No. 2 covered by each one of the 9 writ petitions is reflected from the following chart :
Writ No. Name of respondent No.2 Date of Retirement No. of years put inservice (approximately) Total amount awarded on account of mension/ gratuity besides costs in Rs.
16401/99 Atiq Mirza 31.3.1995 32 25,035.75 16402/99 Mohd.Naseem 30.4.1998 33 68,352.26 16404/99 Sarju 31.5.1997 33 17,497 16405/99 ShivShankar Shukla 31.3.1990 29 37,909.35 16406/99 Hasmath Ali 30.9.1996 33 1,13,757.87 16407/99 Prem Nath 21.7.1991 35 33.921.92 16409/99 Kedar Nath 30.4.1997 30 4,158 16410/99 Smt. Ashia Begum widow of lateemployee Nazim Ali 30.4.1985 34 6,999 16411/99 Nisar Uddin Khan 31.7.1996 34 3,98,237.24
2. The petitioner-Board has challenged the orders passed in the aforesaid writ petitions in favour of respondent No. 2 primarily on the ground that the Presiding Officer of the Labour Court respondent No. 1 had no jurisdiction to pass an order under Section 33C (2) of the Act. as it was not a case of pure computation or calculation of wages or benefits. which may have accrued to the employees.
3. Sri S. N. Dubey has put in appearance on behalf of the respondent No. 2 in Civil Misc. Writ No. 16402 of 1999 and 16406 of 1999.
4. Heard Sri Ranjit Saxena, learned counsel for the petitioner. Sri S. N. Dubey, learned counsel for the respondent No. 2 in the aforesaid two writ petitions, and learned standing counsel.
5. Sri Ranjit Saxena, learned counsel for the petitioner urged that the application on behalf of the concerned employee was not maintainable as the controversy raised in the said applications was beyond the scope of the provisions of Section 33C (2) of the Act. Sri Saxena seemed to submit that the concerned employee should have raised a dispute under the provisions of the Act and if a reference was made to the Labour Court, then only, after passing the award, an order could be passed under Section 33C (2) of the Act. In support of his contention, Sri Saxena placed reliance on the decisions of Apex Court reported in M/s. Punjab Beverages Put. Ltd. Chandigarh v. Suresh Chand and another. 1978 (2) SCC 144 ; Management of Reserve Bank of India. New Delhi v. Bhopal Singh Panchal. AIR 1994 SC 552 ; Central in-land Water Transport Corporation Ltd. v. Workman and another. 1974 (4) SCC 696 ; K. D. Vaish v. Central Government Industrial Tribunal, 1993 167) FLR 534 ; Municipal Corporation of Delhi v. Ganesh Razak and another. 1995 (1) SCC 235 and Division Bench decision of Orissa High Court in Jagannath Barik v. Labour Court. 1993 (66) FLR 842, as well as decisions of other High Court in Life Insurance Corporation of India v. John Anton D'Souza, 1996 (73) FLR 1166 and Ram Sewak Singh v. Accountant General. 1991 (II) UPLBEC 1027. On the strength of the decision of this Court in U. P. Electricity Board v. Presiding Officer. Labour Court I, U. P. Kanpur and others, Civil Misc. Writ No. 31357 of 1995, decided on 17.4.1996 by Hon'ble M. C. Agarwal, J.. and the earlier decision dated 9.11.1992 rendered by Hon'ble D. S. Sinha, J., in Regional Manager State Bank of India, Lucknow v. Central Government Industrial Tribunal cum Labour Court, Civil Misc. Writ No. 16660 of 1985 : 1993 (67) FLR 1036, he contended that the amount of provident fund and the gratuity, even if payable to the employee, cannot be the subject matter of an application under Section 33C (2) of the Act.
6. I have given thoughtful consideration to the matter and have thoroughly scrutinized the observations made in the aforesaid decisions. There can be no denial of the fact that the proceedings under Section 33C (2) of the Act are in the nature of execution proceedings and that they can be initiated with a view to execute an order or award made by the Labour Court or to enforce an existing right under a Statute or otherwise. The gamut of all the rulings referred to above is that the proceedings contemplated under Section 33C (2) of the Act are analogous to execution proceedings and the Labour Court which is called upon to compute the benefit claimed by an employee of an Industry in terms of money, Is in such cases in the position of an Executing Court, like an Executing Court, dealing the execution proceedings under the Civil Procedure Code. A right would accrue to an employee to receive the benefits as alleged by him only when the Labour Court answers the point in his favour. A workman cannot put forward a claim in an application under Section 33C (2) of the Act in respect of a matter which is not based on an existing right and which can appropriately be the subject matter of an industrial dispute requiring reference under Section 10 of the Act. Where the claim of an employee relates to a position or status which is highly disputed or he does not have an existing right to have a particular benefit, in that event, the Authority acting under Section 33C (2) of the Act cannot arrogate itself the function of an Industrial Tribunal or Labour Court. An application under Section 33C (2) of the Act would only be maintainable in a case where computation or calculation of certain wages or benefits in terms of money is to be arrived at with reference to a particular order/award or a statutory provision or arrangement between the employer and the employee.
7. In the instant case, there is no doubt about the fact that each one of the employees was employed by the petitioner-Board. All of them retired after having put in requisite length of service to qualify them to be entitled to pensionary and other benefits. It is an indubitable fact that the petitioner-Board had passed an order on 21.6.1991 whereby the Retirement Benefits Rules and the Family Pension Scheme, as applicable to the State Government employees, were adopted. Each one of the employees who had filed an application under Section 33C (2) of the Act was entitled to the retirement benefits under the Rules of 1961 and to the Family Pension Scheme of 1965. Under the aforesaid Rules and the Scheme, as adopted by the Board, an existing right has been created in favour of the employees who filed application under Section 33C (2). The employees in the present writ petitions had moved applications for the enforcement of their existing right to receive pensionary benefits/ gratuity. On an application under Section 33C (2) of the Act, the Labour Court was required merely to compute and calculate the amount which each one of the employees was entitled to receive under the said Schemes. There was no dispute about the fact whether or not the employees were entitled to the pensionary benefits as well as the amount of gratuity. On the basis of the length of service put in by each one of the employees, the amount of pension and other benefits was to be calculated, The applications under Section 33C (2) of the Act were, therefore, rightly entertained by the Labour Court respondent No. 1 and the computation and calculation of the amount of pension and/or gratuity have been rightly made. This exercise could legally and justifiably' be undertaken under the provisions of Section 33C (2) of the Act.
8. The other limb of the argument of Sri Ranjit Saxena. learned counsel for the petitioner is that the amount of pension and gratuity is not included in the expression 'wages' as defined under the Act and, therefore, no application under Section 33C (2) of the Act for the payment of the said amount could be entertained and the 'proper remedy for the employee was to have obtained an award after raising a dispute under the Act. This submission again does not have any merit. In U. P. S. E. B. v. Presiding Officer, Labour Court. Writ Petition No. 31357 of 1995. decided on 17.4.1996, by this Court, a dispute was raised whether the employee had voluntarily resigned from service or he was superannuated. It was in the wake of this controversy that it was held that the application under Section 33C (2) of the Act was not competent as the disputed claim could not be decided under the aforesaid provision. In Regional Manager. State Bank of India's case (supra), it was held that the Bank and employer's contribution towards the provident fund and gratuity, payable to the workman on termination of his services is expressly excluded from the expression "wages'. It was in this context that it was held that a terminated employee cannot prefer a claim under Section 33C (2) of the Act for provident fund and gratuity as these items have been specifically excluded from the expression 'wages' as defined under Section 2 (rr) of the Act. Similarly in Life Insurance Corporation of India v. John. Anton D'Souza's case (supra), it was held that the employer was entitled to withhold its contribution in respect of provident fund and gratuity In the event of the employee's not vacating the staff quarter allotted in service. Any order passed by the Labour Court under Section 33C (2) of the Act for payment of gratuity and provident fund in respect of the employee who has not vacated the staff quarter was bad in law. The last case on which reliance was placed by Sri Saxena, was K. D. Vaishya's case (supra). It was a case in which increments were withheld by way of punishment of an employee who had retired from service. It was held that the Labour Court has rightly denied the relief as validity or otherwise of the order of punishment cannot be decided in the proceedings under Section 33C (2) of the Act. In none of the decisions referred to above, it has been held that an employee who has retired from service is not entitled to the computation of pension and the amount of gratuity on an application under Section 33C (2) of the Act. As said above, in the instant case, the Retirement Benefit Rules and the new Family Pension Scheme have been adopted by the petitioner-Board for the benefit of all the employees who retired after completing the qualifying service. In these circumstances, the amount of gratuity and pension could be calculated or computed by Labour Court on an application under Section 33C (2).
9. There is no allegation against either of the employees that they are disentitled to the above benefits on account of any order of punishment having been passed against them or failed to comply with the orders of the Board or are retaining the staff quarters in an illegal manner. The simple question before the Labour Court in an application under Section 33C (2) of the Act was to calculate the amount of pension and gratuity in respect of that employee who had retired after completing service which made him eligible to the pensionary benefits and the amount of gratuity. At this stage, it would not be out of place to mention that the petitioner Board has failed to contest the applications under Section 33 C (2) and, of necessity, most of the applications were decided ex parte. Now that the orders have been passed in favour of the retired employees, the Board cannot be heard to say that the order are illegal or without jurisdiction.
10. In the result, all the nine writ petitions fail and are accordingly dismissed.