# Chandra Bhal Mishra v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1697
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-23
- **Case number:** Writ C No. 23708 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-bhal-mishra-v-state-of-u-p-ors-44658
- **Pages:** 14

## Headnote

A. Labour law - Industrial Dispute Act,
1947 - Section 33C (2) - Jurisdiction of
Labour Court - When the claim involve
adjudication of a dispute, Labour Court
cannot assume jurisdiction - Computation
of difference of wages in respect of claim
for promotional post involve adjudication
of dispute - Such a dispute is beyond
jurisdiction of Labour Court. (Para 26 & 27)

B. Labour law - Power of Labour Court -
Grant of relief - Relief can be granted
only if the right has been recognised
already and benefits flow from such
recognition - Claim not being based on
any pre-existing benefits or flowing from
pre-existing rights, is beyond power of
Labour Court. (Para 26 & 28)

Writ Petition dismissed (E-1)

Case relied on :-

## Text

_Characters 0–39,499 of 46,504. This is a partial read: ask again with offset=39499 for what follows._

2 All. Chandra Bhal Mishra Vs State of U.P. & Ors.
1697
such words relating to such matter and
thereafter
to
interpret
the
meaning
intended to be conveyed by the use of the
words under the circumstances.

24. The principles articulated by the
Court in Brahm Singh clearly set the
controversy to rest and beyond the pale of
dispute. Once it is recognised that an
Additional
Commissioner
stands
duly
authorised by virtue of an order made by the
Commissioner under Section 13 (3) of the
1901 Act, he, for all intents and purposes,
must be recognised as having donned the
mantle of the Commissioner himself and the
powers so exercised and decisions rendered
are entitled in law to be viewed as those
made by the Commissioner. The, fiction,
statutorily introduced, as evident from the
use of the phrase "...as if he were the
Commissioner of the division" must be given
full effect. The moment an authorisation is
made under Section 13 (3), the statutory
fiction comes into play and the Additional
Commissioner
would
consequently
be
entitled to be viewed as being sufficiently
empowered to exercise the powers enshrined
in Section 27 (4) of the 1960 Act.

25. Turning to the merits of the case,
the Court notes that the allegations setforth in paragraph-3 of the counter
affidavit were clearly serious and strike at
the root of the validity of the settlements
made in favour of the petitioners. All the
petitioners were neither the residents of
the concerned village nor were they
landless labourers eligible under Section
27 of the 1960 Act. The charge of the
settlements being an outcome of nepotism
as raised by the State respondents is
clearly well founded. It is manifest that
the settlements were made illegally thus
depriving various other needy and eligible
persons existing in the village of the fruits
of Section 27. The settlements made in
favour of the petitioners was clearly a fraud
on statute. The defense of the petitioners
based on the entries appearing in the Voters
List and Ration Cards, even if assumed to
be correct, could not have saved the
settlements made in light of the copious
evidence gathered by the respondents which
established that none of them were landless
labourers. The counter affidavit has also
brought on record the revenue records
which established that they were not
residents of the village concerned. This
evidence clearly overshadows the entries
stated to appear in the Voters List and
Ration Cards. The Court is constrained to
note that the findings recorded by the
respondents with respect to the vocation of
respective petitioners was not seriously
assailed either in the writ petition or by
learned
Senior
Counsel
in his
oral
submissions. On merits, therefore, the Court
finds itself unable to sustain the settlements
made in favour of the petitioners.

26. The writ petitions consequently
fail and are dismissed.
----------

(2019)10ILR A 1697

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2019

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 23708 of 2019

Chandra Bhal Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
1698 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Anand Srivastava.

Counsel for the Respondents:
C.S.C., Sri Anuj Pratap Singh, Sri Swapnil
Kumar.

A. Labour law - Industrial Dispute Act,
1947 - Section 33C (2) - Jurisdiction of
Labour Court - When the claim involve
adjudication of a dispute, Labour Court
cannot assume jurisdiction - Computation
of difference of wages in respect of claim
for promotional post involve adjudication
of dispute - Such a dispute is beyond
jurisdiction of Labour Court. (Para 26 & 27)

B. Labour law - Power of Labour Court -
Grant of relief - Relief can be granted
only if the right has been recognised
already and benefits flow from such
recognition - Claim not being based on
any pre-existing benefits or flowing from
pre-existing rights, is beyond power of
Labour Court. (Para 26 & 28)

Writ Petition dismissed (E-1)

Case relied on :-
1. The Central Bank of India Ltd. Vs P. S.
Rajagopalan AIR 1964 SC 743.
2. St. Bank of Bikaner & Jaipur Vs R.L.
Khandelwal 1968 (16) FLR 315.
3. M/s Punjab Beverages Pvt. Ltd. Chandigarh
Vs Suresh Chand & ors. (1978) 2 SCC 144.
4. Central Inland Water Transport Corp. Ltd.
Vs The Workmen & ors. (1974) 4 SCC 696
5. Muncipal Corp. of Delhi Vs Ganesh Razak &
ors. (1995) 1 SCC 235.
6. St. Bank of India Vs Ram Chandra Dubey &
ors. (2001) 1 SCC 73.
7. St. of U.P. & ors. Vs Brijpal Singh (2005) 8
SCC 58.
8. U.P. St. Road Transport Corp. Vs Birendra
Bhandari (2006) 10 SCC 211.
9. U.O.I. & ors. Vs Kankuben (Dead) by L.R.S.
& ors. (2006) 9 SCC 292.
10. National Textiles Corp. (U.P.) Kanpur Vs
Presiding Officer, IV Labour Court, Kanpur &
ors. 2007 (114) FLR 645.
(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Anand Srivastava,
learned counsel for the petitioner and Sri
Swapnil
Kumar,
learned
counsel
appearing for Respondent No.3.

2. The present petition seeks to
challenge the order dated 15.04.2019
passed by the Presiding Officer, Labour
Court (1st), U.P. Kanpur Nagar in Misc.
Case No. 08/2018 (Chandrabhal Mishra
vs. U.P.S.I.D.C.) whereby the application
filed by the petitioner under Section 33C(2) of the Industrial Disputes Act, 1947
(in short 'the Act') has been rejected.

3. The records of the case indicate
that an application under Section 33-C (2)
of the Act was filed by the petitioner
claiming that he was entitled to promotion
on a higher post from the date on which
his juniors had been promoted and further
claiming computation of the difference of
wages in respect of the promotional post.
A chart had also been appended along
with the application in respect of the
claim for difference of wages which
would have been admissible had he been
granted promotion to the higher post.

4. The aforementioned claim had
been sought to be put forth by the
petitioner on the basis of an earlier
judgment of this Court dated 9.11.2004
passed in Special Appeal No. 1463 of
2004 (Chandra Bhal Mishra Vs. Principal
Secretary Industries, Government of U.P.
and others) which had been allowed in the
following terms :-
2 All. Chandra Bhal Mishra Vs State of U.P. & Ors.
1699

"We, therefore, quash the order
dated
07.07.1099
by
which
the
resignation letter is said to have been
accepted. The petitioner-appellant shall
be treated to be in continuous service and
shall be entitled to all the benefits as he
had been continuous service but he shall
not claim any salary for the period he
remained out of service.The respondent
Corporation shall reinstate the petitioner
-appellant forthwith."

5. The Labour Court in the order
dated 15.4.2019 which is sought to be
challenged in the present petition has duly
recorded a finding that it was the admitted
case of the petitioner that in compliance
of the aforementioned judgment dated
9.11.2004 the petitioner had been taken in
service by his employers vide order dated
16.12.2004 and he had been paid the
admissible salary and allowances against
the post on which he had been working.

6. The Labour Court has also taken
note of the fact that the respondentemployer
was
a
State
Government
Undertaking where promotions were
made under certain specified norms as per
the relevant rules. The Labour Court upon
taking note of the fact that the claim
sought to be raised by the petitioner was
for computation of an amount which
would be admissible to the petitioner
upon his being granted promotion to a
higher post, has held that the said claim
would not be maintainable under Section
33-C (2) of the Act in view of the fact that
the petitioner having not been promoted
to the higher post there was no existing
right to raise a claim for computation of
the amount which would become due to
him
upon
his
being
granted
the
promotional post. It has also recorded that
the adjudication of the claim raised by the
petitioner could be made only upon a
valid reference under the U.P. Industrial
Disputes Act, 1947 and adjudication of
the same by a competent court, and only
thereafter the petitioner could seek
computation
of
the
amount.
The
application filed under Section 33-C(2)
has accordingly been rejected.

7. Contention of the counsel for the
petitioner is that he was entitled to
promotion from the date on which his
juniors had been promoted and was also
entitled to claim computation of the
amount which would become due to him
upon being granted the promotional post.

8. Per contra, Sri Swapnil Kumar,
learned
counsel
appearing
for
the
respondent no. 3 has submitted that in
terms of the order dated 9.11.2004 passed
by this Court, the petitioner had been
taken back in service and was granted all
the benefits which he was entitled to in
respect of the post on which he had been
working by treating him to be in
continuous service. It was submitted that
the aforementioned order dated 9.11.2004
did not grant entitlement to the petitioner
to claim benefits of the promotional post
or to apply for computation of difference
of wages in respect of the promotional
post. It was further submitted that the
petitioner having not been promoted to
the higher post no claim for computation
of the said benefits could be made under
Section 33-C (2) of the Act.

9. Heard learned counsel for the
parties and perused the record.

10. The question which falls for
consideration is as to whether the
petitioner
could
have
invoked
the
1700 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of Section 33-C (2) of the Act
seeking computation of the amount which
would have been admissible to him upon
being granted promotion to a higher post.

11. In order to appreciate the
controversy it would be necessary to
advert to the relevant statutory provision
which is as follows :-

33-C. Recovery of money due
from an employer

"(2) Where any workman is
entitled to receive from the employer any
money or any benefit which is capable of
being computed in terms of money and if
any question arises as to the amount of
money due or as to the amount at which
such benefit should be computed, then the
question may, subject to any rules that
may be made under this Act, be decided
by such Labour Court as may be specified
in
this
behalf
by
the
appropriate
Government
within
a
period
not
exceeding three months :

Provided
that
where
the
presiding officer of a Labour Court
considers it necessary or expedient so to
do, he may, for reasons to be recorded in
writing, extend such period by such
further period as he may think fit."

12. In terms of the aforementioned
provision, in a case where any workman
is entitled to receive from the employer
any money or any benefit which is
capable of being computed in terms of
money and if any question arises as to the
amount of money due or as to the amount
at
which
such
benefit
should
be
computed, then the question may, be
decided by the Labour Court.

13. It is thus seen that the benefit of
which computation may be sought under
Section 33-C (2) must be based on a
previous entitlement of the workman or in
other words it must be based on a preexisting benefit or a benefit flowing from
pre-existing right.

14. The proceedings under Section
33-C (2) have been held to be in the
nature of execution proceedings under
which the Labour Court calculates the
amount due to a workman from his
employer or if the workman is entitled to
any benefit which is capable of being
computed in terms of money the Labour
Court may proceed to compute the said
benefit in terms of money. However, the
right to the money which is sought to be
calculated or the benefit which is sought
to be computed must be an existing one
i.e. already adjudicated upon, and it
would not be competent for the Labour
Court
exercising
jurisdiction
under
Section 33-C (2) to arrogate to itself the
functions of an industrial tribunal and
entertain a claim which is not based on an
existing right but which may be subject
matter of an industrial dispute to be raised
in a reference under Section 10 of the Act.

15. The scope of Section 33-C (2)
fell for consideration in the case of The
Central Bank of India Ltd. v. P. S.
Rajagopalan1, wherein it was held that
while construing the provisions of Section
33-C (2) it was to be borne in mind that
cases which fall under Section 10 (1) are
not brought within its scope. The relevant
observations made in the judgment are as
follows:-

"9......It
is
urged
by
the
appellant that sub-section (2) can be
invoked by a workman who is entitled to
receive from the employer the benefit
2 All. Chandra Bhal Mishra Vs State of U.P. & Ors.
1701
there specified, but the right of the
workman to receive the benefit has to be
admitted and could not be a matter of
dispute between the parties in cases which
fall under sub-section (2). The argument
is, if there is a dispute about the
workman's right to claim the benefit, that
has to be adjudicated upon not under subsection (2), but by other appropriate
proceedings permissible under the Act,
and since in the present appeals, the
appellant disputed the respondents' right
to claim the special allowance, the
Labour Court had no jurisdiction to deal
with their claim. In other words, the
contention is that the opening words of
sub-section (2) postulate the existence of
and admitted right vesting, in a workman
and do not cover cases where the said
right is disputed.

10.On the other hand, the
respondents contend that sub-section (2)
is broad enough to take in all cases where
a workman claims some benefit and wants
the said benefit to be computed in terms of
money. If in resisting the said claim, the
employer makes several defences, all
those defences will have to be tried by the
Labour Court under sub-section (2). On
this argument all questions arising
between the workmen and their employers
in respect of the benefit which they claim
to be computed in terms of money would
fall within the scope of sub-section (2)."

16. Further, after referring to the
legislative history of the provision, it was
held as follows :-

"15.The legislative history to
which we have just referred clearly
indicates that having provided broadly for
the
investigation
and
settlement
of
industrial disputes on the basis of
collective bargaining, the legislature
recognised
that
individual
workmen
should be given a speedy remedy to
enforce their existing individual rights,
and so, inserted Section 33-A in the Act in
1950 and added Section 33-C in 1956.
These two provisions illustrate the cases
in which individual workmen can enforce
their rights without having to take
recourse to Section 10(1) of the Act, or
without having to depend upon their
union to espouse their cause. Therefore,
in construing Section 33-C we have to
bear in mind two relevant considerations.
The construction should not be so broad
as to bring within the scope of Section 33C cases which would fall under Section
10(1). Where industrial disputes arise
between employees acting collectively and
their employers, they must be adjudicated
upon in the manner prescribed by the Act,
as for instance, by reference under
Section 10(1). These disputes cannot be
brought within the purview of Section 33C. Similarly, having regard to the fact
that the policy of the legislature in
enacting Section 33-C is to provide a
speedy remedy to the individual workmen
to enforce or execute their existing rights,
it would not be reasonable to exclude
from the scope of this section cases of
existing rights which are sought to be
implemented by individual workmen. In
other words, though in determining the
scope of Section 33-C we must take care
not to exclude cases which legitimately
fall within its purview, we must also bear
in mind that cases which fall under
Section 10(1) of the Act for instance,
cannot be brought within the scope of
Section 34-C (sic 33-C)."

17. In a case where a claim was
raised with regard to entitlement of
supervisory allowance alleging wrongful
reversion in the case of State Bank of
1702 INDIAN LAW REPORTS ALLAHABAD SERIES
Bikaner & Jaipur Vs. R.L. Khandelwal2,
it was held by the Supreme Court that an
application under Section 33-C (2), in the
absence of any adjudication of the rights
of
the
workman,
would
not
be
maintainable. The relevant observations
made in the judgment are as follows.

"5.The scope of the function and
powers of a Labour Court, when dealing
with an application under Section 33-C(2)
of the Act, has been laid down by this
Court in several cases, amongst which
mention may be made of Punjab National
Bank Limited v. K.L. Kharbanda, [1962]
Suppl. 2 S.C.R. 977 ; 22 F.J.R. 171, The
Central Bank of India Ltd. v. P.S.
Rajagopalan etc., (1963)IILLJ89SC , and
Bombay Gas Co. Ltd. v. Gopal Bhiva and
others, (1963)IILLJ608SC . The effect of
these decisions was recently summarised
in the judgment delivered on August
8,1967,
in
Chief
Mining
Engineer,
M/s.East
India
Coal
Co.
Ltd.
v.
Rameshwar and others, Civil Appeals
Nos. 257-267 of 1966-- (1967) 33 F.J.R.
90. These decisions make it clear that a
workman cannot put forward a claim in
an application under Section 33-C(2) in
respect of a matter which is not based on
an existing right and which can be
appropriately the subject-matter of an
industrial
dispute
only
requiring
reference under Section 10 of the Act.

In
the
present
case,
the
respondent himself in paragraph 2 of his
application
under
Section
33-C(2)
admitted that he continued to do the work
in the supervisory capacity until on
February 3, 1956, he was wrongfully
reverted to do clerical work because he
demanded benefit of the supervisory
allowance prescribed under the Sastry
Award.
The
question
whether
his
reversion was wrongful or rightful, or
whether it should be set aside, is not a
matter within the jurisdiction of a Labour
Court dealing with an application under
Section 33-C(2). The vacation of such an
order can only be sought by raising an
industrial dispute and having it decided in
accordance with the other provisions of
the Act. A Labour Court, acting under
Section 33-C(2), has to decide the
application on the basis that, in fact, the
respondent was, during the relevant
period, doing clerical work and not
employed on supervisory duties............"

18. In the case of M/s Punjab
Beverages Pvt. Ltd., Chandigarh Vs
Suresh Chand And Another3, while
considering the scope of Section 33-C (2)
it
was
held
that
the
proceedings
thereunder are in the nature of execution
proceedings. The relevant observations
made in the judgment are as follows :

"4..........It is now well-settled,
as a result of several decisions of this
Court, 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 his 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. But 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.
(Vide
Chief
Mining
Engineer,East
India
Coal
Co.
Ltd.v.Rameshwar[AIR 1968 SC 218 :
(1968) 1 SCR 140 : (1968) 1 LLJ 6 : 33
2 All. Chandra Bhal Mishra Vs State of U.P. & Ors.
1703
FJR 90] .) It is not competent to the
Labour Court exercising jurisdiction
under Section 33-C(2) to arrogate to itself
the functions of an industrial Tribunal
and entertain a claim which is not based
on an existing right but which may
appropriately be made the subject-matter
of an industrial dispute in a reference
under Section 10 of the Act. (VideState
Bank
of
Bikaner
and
Jaipurv.R.L.
Khandelwal[(1968) 1 LLJ 589 : (196768) 33 FJR 462 : (1968) 38 Com Cas
400] .) That is why Gajendragadkar, J.
pointed out in The Central Bank of India
Ltd.v.P.S. Rajagopalan[AIR 1964 SC 743
: (1964) 3 SCR 140 : (1963) 2 LLJ 89 : 25
FJR 44] that :

"if an employee is dismissed or
demoted and it is his case that the
dismissal or demotion is wrongful, it
would not be open to him to make a claim
for the recovery of his salary or wages
under Section 33-C(2). His demotion or
dismissal may give rise to an industrial
dispute which may be appropriately tried,
but once it is shown that the employer has
dismissed or demoted him, a claim that
the dismissal or demotion is unlawful and,
therefore, the employee continues to be
the workman of the employer and is
entitled to the benefits due to him under a
pre-existing contract, cannot be made
under Section 33-C(2)."

The workman, who has been
dismissed, would no longer be in the
service of the employer and though it is
possible that on a reference to the
Industrial Tribunal under Section 10 the
Industrial Tribunal may find, on the
material placed before it, that the
dismissal was unjustified, yet until such
adjudication is made, the workman
cannot ask the Labour Court in an
application under Section 33-C(2) to
disregard his dismissal as wrongful and
on that basis to compute his wages. The
application under Section 33-C(2) would
be maintainable only if it can be shown by
the workman that the order of dismissal
passed against him was void ab initio.
Hence it becomes necessary to consider
whether the contravention of Section 33-
(2)(b) introduces a fatal infirmity in the
order of dismissal passed in violation of it
so as to render it wholly without force or
effect, or despite such contravention, the
order of dismissal may still be sustained
as valid."

19. A similar view was taken in the
case of Central Inland Water Transport
Corporation Limited Vs.The Workmen
and Another.4, wherein it was held that
the proceedings under Section 33-C (2)
being in the nature of an execution
proceeding, an investigation of the alleged
right of re-employment is outside its
scope and Labour Court exercising
powers under Section 33-C (2) cannot
arrogate
to itself the
functions of
adjudication of a dispute relating to the
claim
of
re-employment.
The
observations made in the judgment are as
follows :-

"12. It is now well-settled that a
proceeding under Section 33-(C)(2) is a
proceeding, generally, in the nature of an
execution proceeding wherein the Labour
Court calculates the amount of money due
to a workman from his employer, or if the
workman is entitled to any benefit which
is capable of being computed in terms of
money, the Labour Court proceeds to
compute the benefit in terms of money.
This calculation or computation follows
upon an existing right to the money or
benefit, in view of its being previously
adjudged, or, otherwise, duly provided
for. In Chief Mining Engineer East India
1704 INDIAN LAW REPORTS ALLAHABAD SERIES
Coal Co. Ltd. v. Rameswar 1968 (1) Lab
LJ 6, it was reiterated that proceedings
under Section 33-(C)(2) are analogous to
execution proceedings and the Labour
Court called upon to compute in terms of
money the benefit claimed by workmen is
in such cases in the position of an
executing court. It was also reiterated
that the right 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
an
industrial
workman and his employer.

13. In a suit, a claim for relief
made
by
the
plaintiff
against
the
defendant
involves
an
investigation
directed to the determination of (i) the
plaintiff's
right
to
relief;
(ii)
the
corresponding liability of the defendant,
including, whether the defendant is, at all,
liable or not; and (iii) the extent of the
defendant's liability, if any. The working
out of such liability with a view to give
relief is generally regarded as the
function of an execution proceeding.
Determination No. (iii) referred to above,
that is to say, the extent of the defendant's
liability may sometimes be left over for
determination in execution proceedings.
But that is not the case with the
determinations under heads (i) and (ii).
They are normally regarded as the
functions of a suit and not an execution
proceeding. Since a proceeding under
Section 33-(C)(2) is in the nature of an
execution proceeding it should follow that
an
investigation
of
the
nature
of
determinations (i) and (ii) above is,
normally, outside its scope. It is true that
in a proceeding under Section 33-(C)(2),
as in an execution proceeding, it may be
necessary to determine the identity of the
person by whom or against whom the
claim is made if there is a challenge on
that score. But that is merely 'Incidental'.
To call determinations (i) and (ii)
'Incidental' to an execution proceeding
would be a perversion, because execution
proceedings in which the extent of
liability
is
worked
out
are
just
consequential upon the determinations (i)
and (ii) and represent the last stage in a
process leading to final relief. Therefore,
when a claim is made before the Labour
Court under Section 33-(C)(2) that Court
must clearly understand the limitations
under which it is to function. It cannot
arrogate to itself the functions-say of an
Industrial Tribunal which alone is entitled
to make adjudications in the nature of
determinations (i) and (ii) referred to
above, or proceed to compute the benefit
by dubbing the former as 'Incidental' to its
main business of computation. In such
cases determinations (i) and (ii) are not
'Incidental' to the computation. The
computation itself is consequential upon
and subsidiary to determinations (i) and
(ii) as the last stage in the process which
commenced with a reference to the
Industrial Tribunal. It was, therefore, held
in State Bank of Bikaner and Jaipur v.
R.L. Khandelwal that a workman cannot
put forward a claim in an application
under Section 33-(C)(2) in respect of a
matter which is not based on an existing
right and which can be appropriately the
subject matter of an ID which requires a
reference under Section 10 of the Act.

14. The scope of Section 33-
(C)(2) was illustrated by this Court in The
Central Bank of India Ltd. v. P.S.
Rajagopalan
etc.(1963)IILLJ89SC
.
Under the Shastri Award, Bank clerks
operating the adding machine were
declared to be entitled to a special
allowance of Rs. 10 per month. Four
clerks made a claim for computation
2 All. Chandra Bhal Mishra Vs State of U.P. & Ors.
1705
before the Labour Court. The Bank
denied the claim that the clerks came
within the category referred to in the
award and further contended that the
Labour Court under Section 33-(C)(2)
had no jurisdiction to determine whether
the clerks came within that category or
not. Rejecting the contention, this Court
held that the enquiry as to whether the 4
clerks came within that category was
purely 'incidental' and necessary to
enable the Labour Court to give the relief
asked for and, therefore, the Court had
jurisdiction to enquire whether the clerks
answered the description of the category
mentioned in the Shastri Award, which
not only declared the right but also the
corresponding liability of the Employer
bank. This was purely a case of
establishing the identity of the claimants
as coming within a distinct category of
clerks in default of which it would have
been impossible to give relief to anybody
falling in the category. When the Award
mentioned the category it, as good as,
named every one who was covered by the
category and hence the enquiry, which
was necessary, became limited only to the
clerks' identity and did not extend either
to a new investigation as to their rights or
the Bank's liability to them. Both the latter
had been declared and provided for in the
Award and the Labour Court did not have
to investigate the same. Essentially,
therefore, the assay of the Labour Court
was in the nature of a function of a court
in execution proceedings and hence it was
held
that
the
Labour
Court
had
jurisdiction to determine, by an incidental
enquiry, whether the four clerks came in
the category which was entitled to the
special allowance.

15. It is, however, interesting to
note that in the same case the Court at
page 156 gave illustrations as to what
kinds of claim of a workman would fall
outside the scope of Section 33-(C)(2). It
was pointed out that a workman who is
dismissed by his employer would not be
entitled to seek relief under Section 33-
(C)(2) by merely alleging that, his
dismissal being wrongful, benefit should
be computed on the basis that he had
continued in service. It was observed:

"His ... dismissal may give rise
to an industrial dispute which may be
appropriately tried, but once it is shown
that the employer has dismissed ... him, a
claim that the dismissal ... is unlawful
and, therefore, the employee continues to
be the workman of the employer and is
entitled to the benefits due to him under a
pre-existing contract, cannot be made
under Section 33-(C)(2)". By merely
making a claim in a loaded form the
workmen cannot give the Labour Court
jurisdiction under Section 33-(C)(2). The
workman who has been dismissed would
no longer be in the employment of the
employer. It may be that an industrial
tribunal may find on an investigation into
the circumstances of the dismissal that the
dismissal was unjustified. But when he
comes before the Labour Court with his
claim for computation of his wages under
Section 33-(C)(2) he cannot ask the
Labour Court to disregard his dismissal
as wrongful and on that basis compute his
wages. In such cases, a determination as
to whether the dismissal was unjustified
would be the principal matter for
adjudication, and computation of wages
just
consequential
upon
such
adjudication. It would be wrong to
consider the principal adjudication as
'incidental' to the computation. Moreover,
if we assume that the Labour Court had
jurisdiction to make the investigation into
the circumstances of the dismissal, a very
anomalous situation would arise. The
1706 INDIAN LAW REPORTS ALLAHABAD SERIES
Labour Court after holding that the
dismissal was wrongful would have no
jurisdiction to direct reinstatement under
Section
33-(C)(2).
And
yet
if
the
jurisdiction to compute the benefit is
conceded it will be like conceding it
authority to pass orders awarding wages
as many times as the workman comes
before
it
without
being
reinstated.
Therefore, the Labour Court exercising
jurisdiction under Section 33-(C)(2) has
got to be circumspect before it undertakes
an investigation, reminding itself that any
investigation it undertakes is, in a real
sense, incidental to its computation of a
benefit under an existing right, which is
its principal concern.

20. In the case of Muncipal
Corporation of Delhi Vs. Ganesh Razak
and another5, the respondents who were
daily
rated/causal
workers,
initiated
proceedings under Section 33-C (2),
claiming that they were doing the same
kind of work as regular employees and
were therefore entitled to the same pay as
regular employees on the principle of
"equal pay for equal work". The Labour
Court allowed their claim and writ
petitions
filed
there
against
were
dismissed. In appeals by special leave, the
Supreme Court after referring to the
various judgments on the issue, held that
the Labour Court cannot adjudicate the
dispute of entitlement or the basis of
claim of the workmen and it could only
interpret the award or settlement on which
the claim is based its jurisdiction being
like that of an executing court. The
relevant
observations
made
in
the
judgment are being extracted below.

"12 ........where the very basis of
the claim or the entitlement for 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 33-C(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 33-C(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
33-C(2) like that of the Executing Court's
power to interpret the decree for the
purpose of its execution."

21. Observations to a similar effect
were made in State Bank of India Vs.
Ram Chandra Dubey and Ors.6, which
was a case where the Industrial Tribunal
had ordered for reinstatement but the
award was silent with regard to payment
of back wages. The workmen filed an
application under Section 33-C (2)
whereupon an order was passed by the
Tribunal-cum-Labour Court allowing the
application and computing the amounts
payable to the workmen by way of back
wages. Upon the matter being taken up to
the Supreme Court the order passed by
the Labour Court as affirmed by the High
Court was set aside and it was held that
jurisdiction
of Labour
Court under
Section 33-C (2) extends to computation
of a pre-existing benefit or one flowing
from a pre-existing right and not to
computation of a benefit which is
considered just and fair. The relevant
2 All. Chandra Bhal Mishra Vs State of U.P. & Ors.
1707
observations made in the judgment are as
follows :-

"7.When a reference is made to
an Industrial Tribunal to adjudicate the
question not only as to whether the
termination of a workman is justified or
not but to grant appropriate relief, it
would consist of examination of the
question whether the reinstatement should
be with full or partial back wages or
none. Such a question is one of fact
depending upon the evidence to be
produced before the Tribunal. If after the
termination of the employment, the
workman is gainfully employed elsewhere
it is one of the factors to be considered in
determining whether or not reinstatement
should be with full back wages or with
continuity of employment. Such questions
can be appropriately examined only in a
reference. When a reference is made
under Section 10 of the Act, all incidental
questions
arising
thereto
can
be
determined by the Tribunal and in this
particular case, a specific question has
been referred to the Tribunal as to the
nature of relief to be granted to the
workmen.

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 33C(2) of the Act. The benefit sought to be
enforced under Section 33-C(2) of the Act
is necessarily a pre-existing benefit or one
flowing from a pre-existing right. The
difference between a pre-existing right or
benefit on one hand and the right or
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 latter 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 granted 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 is only in
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 or that the award
of reinstatement itself conferred right for
claim of back wages."

22. Reiterating a similar view in the
case of State of U.P. and another Vs.
Brijpal Singh7 it was held that the
difference between a pre-existing right or
benefit and one which is considered just
1708 INDIAN LAW REPORTS ALLAHABAD SERIES
and fair is vital, and it is not competent
for Labour Court exercising jurisdiction
under Section 33-C (2) to entertain a
claim which is not based on an existing
right but which may appropriately be
subject matter of an industrial dispute.
Referring to the earlier judgments on the
point it was held as follows :-

"13. Thus, it is clear from the
principle
enunciated
in
the
above
decisions that the appropriate forum
where question of back wages could be
decided is only in a proceeding before a
forum to whom a reference under Section
10 of the Act is made. Thereafter, the
Labour Court, in the instant case, cannot
arrogate to itself the functions of an
Industrial Tribunal and entertain the
claim made by the respondent herein
which is not based on an existing right but
which may appropriately be made the
subject-matter of an industrial dispute in
a reference under Section 10 of the ID
Act. Therefore, the Labour Court had no
jurisdiction to adjudicate the claim made
by the respondent herein under Section
33-C(2) of the ID Act in an undetermined
claim and until such adjudication is made
by the appropriate forum, the respondent
workman cannot ask the Labour Court in
an application under Section 33-C(2) of
the ID Act to disregard his dismissal as
wrongful and on that basis to compute his
wages............"

23. In the case of U.P. State Road
Transport Corporation Vs. Birendra
Bhandari8, a claim petition filed for
payment of arrears relating to difference
of salary, leave encashment, DA arising
out of recommendations of 5th Pay
Commission, was accepted by the Labour
Court and a direction was made for
payment within a period of two months.
The said order was affirmed by the High
Court in the writ petition. Upon a
challenge being raised, it was held that
Section 33-C (2) was not applicable as
there was no pre-existing benefit or right
available to the workman in this case and
the orders passed by the Labour Court and
High Court were set aside.

24. The question of maintainability
of an application claiming overtime
allowance, under Section 33-C (2), where
the said claim was disputed by the
employer came up for consideration in the
case of Union of India and another Vs.
Kankuben (Dead) by LRS. and others9,
and after discussing the case law on the
point the said application was held to be
not maintainable.

25.