JUDGMENT Ashok Bhushan, J.
1. These two writ petitions have been filed against the same order of the Labour Court dated 31st August, 1993 and are being disposed of by this common judgment.
2. The first writ petition has been filed by U.P. State Road Transport Corporation (hereinafter referred to as the Corporation) challenging the order dated 31st august, 1993 passed under Section 33-C(2) of the Industrial Disputes Act, 1947 allowing the application filed by the workman, Swami Nath.
3. Brief facts necessary for deciding both the writ petitions are; Swami Nath, petitioner in the second writ petition (hereinafter referred to as the workman) was working as Conductor in the Corporation. He was engaged in 1956 and was working as Conductor on 1st July, 1979 in the pay scale of Rs. 185-265. With effect from 1st July, 1979 the pay scale was revised on Rs. 335- 495. After completion of 10 years service the Conductors were entitled for the higher pay scale of Rs. 425-545 and again after further completion of 10 years service they were entitled for the pay scale of Rs. 510-640. The claim of the workman was that although he has completed 20 years of service in 1976 and was entitled for the pay scale of Rs. 510-640 with effect from 1.7.1979, he was not given the said pay scale. An application under Section 33-C(2) was filed claiming difference of salary to which he was entitled amounting to Rs. 79,093.14P. The claim of the workman was resisted by the Corporation. The Corporation's case was that the workman was given an adverse entry in 1986-87, hence he was not entitled for the higher pay scale. The Labour Court vide its order impugned has allowed the application of the workman from 1.7.1979 in the pay scale of Rs. 425-545 and from 1.7.1990 in the pay scale of Rs. 510-640. The said order has been challenged by the Corporation and the workman.
4. Learned Counsel for the Corporation, challenging the order, contended that the application filed by the workman was not maintainable under Section 33-C(2). He contends that the case required adjudication of the entitlement of the workman, hence the application was liable to be rejected. He placed reliance on judgments of the Apex Court in ; State of U.P. and Anr. v. Brijpal Singh (2001)1 S.C.C. 73; State Bank of India v. Ram Chandra Dubey and Ors. and a judgment of learned Single Judge of this Court reported in 2002(93.) FLR 410; U.P. State Road Transport Corporation v. State of U.P. and Ors. He further contends that the workman having awarded an adverse entry which fact has been noted by the Labour Court, the Labour Court passed an inconsistent order in so far as it recorded finding that adverse entry was not relevant for denying the higher pay scale whereas he granted the higher pay scale from 1st July, 1990 instead of 1st July, 1989 when he would have completed 10 years period.
5. Learned Counsel for the workman in support of his writ petition contended that workman was entitled for pay scale of Rs. 510-640 from 1st July, 1989 and the Labour Court wrongly gave the said benefit from 1st July, 1990.
6. I have considered the submissions of the counsel for the parties and perused the record.
7. The first submission of counsel for the Corporation is non maintainability of the application under Section 33-C(2). The proceedings under Section 33-C(2) of the Industrial Disputes Act are in the nature of execution proceedings for a pre existing benefit. The learned Counsel of the Corporation for the said proposition has relied on the judgment of the Apex Court in State Bank of India's case (supra) in which principles have been laid down by the Apex Court in paragraph 8. The Apex Court has held in the said judgment that the benefit sought to be enforced under Section 33-C(2) is necessarily a pre existing benefit and one flowing from pre existing right. Paragraph 8 of the said judgment is extracted below:
8. The principles enunciated in the decisions referred by either side can be summed up as follows:
Whenever a workman is entitled to receive from his 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 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right of 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 33-C(2) of the Act while the tatter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief grant 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 in only 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 itself conferred right for claim of back wages.
8. In the present case the benefit which is sought to be claimed by the workman was benefit of the higher pay scale which flows from the revised pay scale revised by the authorities themselves. The workman is not claiming any scale which has not yet been sanctioned to the employees. The question as to whether the workman was entitled for the higher pay scale after completion of 10 years or 20 years period is not a question which requires any adjudication apart from computation only. The fixation of the salary according to the higher pay scale sanctioned by the pay scale itself is a claim of pre existing right which flows from the relevant Government orders sanctioning the pay scale and the condition for the grant of higher pay scale. The judgment relied by learned Counsel for the petitioner in State of U.P.'s case (supra) was a case in which the workman had filed a misc. case before the Labour Court for payment of salary from 4.7.1987 till July, 1993 and the bonus. Earlier the matter was pending in the High Court against the order terminating his services in which interim order was granted by the High Court. The Apex Court in the facts of the said case took the view that the question of back wages could be decided only in a forum to which a reference under Section 10 of Industrial Disputes Act is made. The Apex Court held that the Labour Court in the facts of that case could not entertain the claim made by the respondent which was not based on existing right but which could have appropriately been made subject matter of industrial dispute. The said case is clearly distinguishable and is not applicable in facts of the present case. Another case relied by the petitioner's counsel is State Bank of India's case (supra). In the aforesaid case the workmen were terminated and the industrial dispute was raised. The Tribunal passed an award of reinstatement of the workmen with effect from 16th August, 1969. The award was, however, silent in regard to payment of wages for the period of termination and reinstatement. The High Court also did not interfere with the award. After dismissal of the writ petition, application was filed under Section 33-C(2) claiming back wages on the basis of award. The Labour Court allowed the application and computed the amount payable to the workmen. In the facts of the above case the Apex Court allowed the appeal and held that the said back wages were not the pre existing right of the workmen. Principles were laid down in paragraph 8 of the said judgment which have already been extracted above. Another case relied by petitioner's counsel is U.P. State Road Transport Corporation's case (supra). The above case was a case in which an application under Section 33-C(2) was filed claiming overtime allowance for a period 20.2.1984 to 31.12.1984. This Court held that under Section 33-C(2) the claim must necessarily be pre existing benefit and one flowing from pre existing right. The entitlement of overtime required adjudication and could not have been gone into in an application under Section 33-C(2). As noted above, in the present case the claim was based for higher pay scale as already sanctioned from 1.7.1979 and the said pay scale was payable after completion of 10/20 years of service. Thus the submission of the petitioner that the application under Section 33-C(2) was not maintainable cannot be accepted.
9. The next submission of learned Counsel for the Corporation is that award of the Labour Court is inconsistent having held the adverse entry not relevant and given the benefit with effect from on 1.7.1990. There is no inconsistency between the order passed by the Labour Court and the findings. What has been held by the Labour Court was that the adverse entry in one year does not altogether disentitle the workman from the higher pay scale but while granting the relief the Labour Court has excluded that one year period for which adverse entry was granted and awarded the benefit after one year, i.e., on 1.7.1990. The workman claimed fixation of salary in the pay scale of Rs. 425-545 with effect from 1.7.1979 which was payable after 10 years of service. The said pay scale was sanctioned with effect from 1.7.1979 when the workman completed 10 years of service. The question was with regard to grant of further higher pay scale after completion of further 10 years period. Further 10 years period was completed by the workman on 1.7.1989 but since he was awarded one year adverse entry the said entitlement was deferred for a period of one year and was granted on 1.7.1990. I do not find any inconsistency in the order of the Labour Court in deferring the entitlement for a period of one year. It is relevant to note that Labour Court in its award has recorded a categorical finding that the employers have not brought on the record any Government order or any other documents with regard to adverse entry. In this writ petition also the Corporation has not brought on the record relevant Government orders or the conditions for grant of selection grade after completion of 10 years period specially when Labour Court has accepted the case of the workman since no Government order and document pertaining to the adverse entry were brought by the employers.
10. The submission of the workman in support of his writ petition is that the entitlement of the pay scale of Rs. 510-640 should have been given from 1.7.1989. The Labour Court has not granted the said benefit to the workman on account of the adverse entry and deferred the same for a period of one year. No error has been committed in deferring for one year. There is no merit in the writ petition of the workman.
11. In the result both the writ petitions are dismissed.