1. Heard Sri S.N. Dubey, learned counsel for petitioner and perused the record.
2. Writ petition is directed against the order dated 17.7.1997 passed by Labour Court rejecting petitioner's application moved under Section 33-C (2) of Industrial Disputes Act, 1947 (hereinafter referred to as "Central Act, 1947") claiming extra wages on the ground that he has discharged extra duties. The Labour Court has observed that matter includes certain issues which require investigation into disputed questions of fact and that adjudication is not permissible on an application under Section 33-C (2) of Central Act, 1947 but it should be adjudicated in a regular manner by raising industrial dispute under Section 4-K of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as "U.P. Act, 1947") or Section 10 (1) (c) of Central Act, 1947.
3. It is not the case of petitioner that the various factual issues were already admitted by the employer or adjudicated by competent authority/Court. He, therefore, could not show any existing right to claim extra wages and the claim which he raised included certain issues required to be adjudicated which could have been done only on a reference made under Section Section 4-K of U.P. Act, 1947 or Section 10 (1) (c) of Central Act, 1947.
4. The scope of Section 33-C has come up for consideration time and again before the Courts and some of principles enunciated therein may be reminded hereat for analysing whether the order impugned in the writ petition is valid or not.
5. Section 33 commences with the words "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". Thus, the first condition which has to be shown to exist in order to attract Section 33-C(2) is the entitlement of workman to receive any money or benefit capable of computation in terms of money. The factum of its entitlement has to be an admitted fact but where the very entitlement is in dispute, Section 33-C (2), in my view, would not be attracted for the reason that further question that workman was entitled to receive the said amount but was denied would not arise.
6. In Union of India Vs. Kankuben AIR 2006 SC 1784 the Apex Court referring to earlier decisions observed that the benefit sought to be enforced under Section 33-C(2) is necessarily "a pre-existing benefit or one flowing from a pre existing-right". The difference between a pre-existing right and benefit on the one hand and right and benefit which is considered just and fair on the other hand is vital. The former comes within the ambit of Section 33-C(2) while latter does not.
7. Considering pari materia provision in Section 6-H of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as "U.P. Act, 1947") in Hamdard Laboratories Vs. Deputy Labour Commissioner AIR 2008 SC 968, the Court said that Section 6-H (1) of the U.P. Act, 1947 is in the nature of an execution proceedings. It can be invoked inter alia in the event any money is due to workman under an award but cannot be invoked in a case where ordinarily an industrial dispute can be raised and can be referred to any adjudication by the appropriate Government to an industrial Court. The authorities under Section 6-H cannot determine any complicated question of law and also cannot determine in regard to existence of legal right. The Court went to observe that it cannot usurp the jurisdiction of the State Government under Section 11-B of the U.P. Act, 1947. The Court said in paras 38 and 39 that the jurisdiction of Labour Court under Section 33-C(2) is limited and if existence of right itself is disputed the provisions may not be held to have any application.
8. In another decision in D. Krishnan and another Vs. Special Officer, Vellore Coop. S.M. and another, 2008(7) SCC 22 with reference to Section 33-C (2) the Court said that the proceedings therein are in the nature of execution and pre-supposses some adjudication leading to determination of a right which has to be enforced. By simply referring to certain documents a disputed claim cannot be allowed to be executed without any adjudication thereof. The Court referred to its earlier decision in State of U.P. and another Vs. Brijpal Singh, 2005(8) SCC 58 wherein it had held as under:
"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. vs. 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, proceeds 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, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer."
9. Following the above authorities, this Court already taking the same view in Writ Petition No. 11653 of 2004 (State of U.P. through Superintending Engineer Vs. Ram Sahai and another) decided on 25.5.2011 allowed the writ petition and quashed the order of Tribunal entertaining and allowing a disputed claim of workman by means of application under Section 33-C (2) of Central Act, 1947.
10. In view of above exposition of law and considering the fact that claim raised by the petitioner i.e. the workman was never admitted by the employer, I do not find that the Tribunal has committed any mistake, legal or otherwise, in rejecting the application of petitioner under Section 33-C (2) of Central Act, 1947 warranting interference in exercise of power under Article 226. The order impugned in this writ petition deserves to be sustained.
11. Writ petition is dismissed.
12. However, it is made clear this order shall not preclude the petitioner from taking such recourse as available to him in law.
Dt. 18.5.2012 PS