# Vinod Prakash Chaturvedi v. Presiding Officer. Labour Court & others - **Citation:** (2012) 2 ILRA 767 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2012 - **Case number:** Civil Misc. Writ Petition No. 40478 of 1997 - **Bench:** Sudhir Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-prakash-chaturvedi-v-presiding-officer-labour-court-others-42280 - **Pages:** 4 ## Headnote C.S.C. Sri Ranjit Saxena U.P. Industrial Tribunal Act, 1947 Section 33-C(2)-claim of extra wages on discharge of extra duties-Labour Court refused on ground issue requires adjudication-scope of 33 confined with 768 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 "pre-existing benefits or right"-employer never admitted claim of workman-labour court rightly declined to interfere. Held: Para 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. Case law discussed: AIR 2006 SC 1784; AIR 2008 SC 968; 2008 (7) SCC 22; 2005 (8) SCC 58; Writ Petition No. 11653 of 2004 (State of U.P. through Superintending Engineer Vs. Ram Sahai and another) ## Text 2 All] Vinod Prakash Chaturvedi V. Presiding Officer. Labour Court and others 767 for carrying out their goods. The concerned claimants were employees of Transporter who was under contract with the petitioner for transportation purpose only. There was no relationship of employer and employee with the claimants vis a vis the petitioner. 15. The petitioner, in both the writ petitions, is a sugar industry engaged in the manufacturing of sugar for which it purchased sugarcane from sugarcane grower and is engaged in all incidental activities for manufacturing of sugar. From the impugned order it is evident that the question of very existence of relationship of employer and employee was seriously pressed before Prescribed Authority. In its entire order it has discussed the issue of relationship, with reference to various other statutes and authorities. It has also referred to some evidences on this aspect. Apparently the Prescribed Authority, in the case in hand, has decided a seriously disputed question regarding the very existence of relationship of employer and employee between the petitioner and the claimants. 16. To my mind, this issue is not incidental to the question of deduction or delayed payment but a condition precedent to attract the very provisions of Act 1936. Therefore, in a case where the very relationship is under a serious cloud, and needs a detailed but exclusive discussion, it is beyond the jurisdiction of Prescribed Authority under Section 15(1) and (2) of the Act 1936 and has to be adjudicated in appropriate regular proceedings by raising an industrial dispute. It could not have been decided by an authority under Section 15(1) while entering a claim under Section 15(2) and assuming jurisdiction upon itself to decide the said issue. It is infact not an incidental but a substantial jurisdictional issue relating to very applicability of Act 1936. Hence this could not have been decided by Prescribed Authority under Section 15 of Act 1936. The impugned orders passed in both the writ petitions are thus wholly without jurisdiction. 17. The writ petitions, in the facts and circumstances of the case, as discussed above, are allowed. The impugned orders dated 7.7.1997 (Annexure 7 to the writ petition No.32242 of 1997), and 18.8.1997 (Annexure 1 to the writ petition No.974 of 1998) passed by Prescribed Authority are hereby quashed. 18. However, this order shall not preclude the concerned respondents workman to take recourse to such proceedings as permissible in law for enforcing their claim, if any. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.05.2012 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Civil Misc. Writ Petition No. 40478 of 1997 Vinod Prakash Chaturvedi ...Petitioner Versus Presiding Officer. Labour Court & others ...Respondents Counsel or the Petitioner: Sri S.N. Dubey Counsel for the Respondents: C.S.C. Sri Ranjit Saxena U.P. Industrial Tribunal Act, 1947 Section 33-C(2)-claim of extra wages on discharge of extra duties-Labour Court refused on ground issue requires adjudication-scope of 33 confined with 768 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 "pre-existing benefits or right"-employer never admitted claim of workman-labour court rightly declined to interfere. Held: Para 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. Case law discussed: AIR 2006 SC 1784; AIR 2008 SC 968; 2008 (7) SCC 22; 2005 (8) SCC 58; Writ Petition No. 11653 of 2004 (State of U.P. through Superintending Engineer Vs. Ram Sahai and another) (Delivered by Hon'ble Sudhir Agarwal, J.) 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 preexisting benefit or one flowing from a pre 2 All] Vinod Prakash Chaturvedi V. Presiding Officer. Labour Court and others 769 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 770 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 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. --------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 04.05.2012 BEFORE THE HON'BLE SURENDRA KUMAR, J. Criminal Misc. Application No. - 41851 of 2011 Virendra Jaiswal ...Petitioner Versus The State of U.P. ...Respondents Counsel for the Petitioner: Sri A.P.Tiwari Sri S.S. Tripathi Counsel for the Respondents: Govt.Advocate Code of Criminal Procedure Section-451release of Revolver-applicant being accused under section 307-enlarged on bail-application-on ground it was never used in incident-refused merely on pendnecy of criminal case-ignoring direction of Apex Court in S.A. Desai Case-without disclosing any reason for refusal-held-not sustainable-quasheddirection to release the same within 3 weak given. Held: Para 8 Taking into consideration the entire facts and circumstances, I come to the conclusion that the orders of the courts below can not be left to stand. No good reason has been assigned for refusing the prayer for release of the said revolver. Accordingly, the order dated 14.7.2011 passed by the learned Judicial Magistrate Ist, Court No. 24, Gorakhpur and the order dated 15.11.2011 passed by the learned Sessions Judge, Gorakhpur are quashed. Case law discussed: 2003 (46) A.C.C. 223: AIR 2003 SC 638; 2003 (47) A.C.C. 1086 (Delivered by Hon'ble Surendra Kumar, J.) 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. The applicant Virendra Jaiswal has filed this application under Section 482 Cr.P.C. challenging the order dated 14.7.2011 passed by the learned Judicial Magistrate Ist, Court No. 24, Gorakhpur in Crime No. 140 of 2011-State Vs. Ravi Jaiswal, under Section 307 I.P.C., Police Station Khajani, District Gorakhpur and the order dated 15.11.2011 passed by the learned Sessions Judge, Gorakhpur in Criminal Revision No. 272 of 2011Virendra Jaiswal Vs. State of U.P., whereby release of the revolver of the applicant has been refused. 3. It appears that the said revolver is involved in Case Crime No. 140 of 2011State Vs. Ravi Jaiswal, under Section 307 I.P.C., Police Station Khajani, District Gorakhpur. The allegation is that the instant revolver was used in the aforesaid offence and, therefore, it was refused to be released.