JUDGMENT
Balia, J.
(1). Heard learned counsel for the parties.
(2). On the application for urgent hearing filed by the respondent this case has been taken up today.
(3), This petition arises out of the order passed by the Labour Court, Bhilwara on an application moved by the respondent No. 2 u/S. 33C(2) of the Industrial Disputes Act, 1947 (for short ‘the Act of 1947’) claiming arrears of emoluments which he was entitled under the award dt. 24th March, 1992 passed by the Labour Court and
published by the Slate Government dt. 15th October, 1992 as a result of his reinstatement with 50% back wages.
(4). According to facts as emerging from the record the respondent No. 2 was appointed by the petitioner Company on 1.6.82 and his services were terminated w.e.f. 30th May, 1984 and an industrial dispute has been raised by the respondent-workman about the validity of termination as the petitioner’s claim. It was a case of termination of services of the respondent No, 2 but he voluntarily sought coming to the duty w.e.f. 15-10.92.
(5). The case of the workman that he has been not allowed to join the duties but he was willing to work. The said industrial dispute was adjudicated by the award dt. 24th March, 1992 according to which retrenchment of the workman was found to be invalid and he was reinstated immediately with 50% back wages from the dale of termination of service until the date of award.
(6). The respondent-workman moved an application dt. 23rd Feb. 1995 for determining the amount payable to him under the award by way of back wages as well as emoluments on reinstatement upto the date of application.
(7). The workman claimed Rs. 52, 818,45 paisa by way of 50% back wages awarded until the dale of reinstatement from the date of termination. That is to say with effect from 30th May, 1984 to 15th October, 1992. About this computation and the payability of the same is not in dispute.
(8). Another sum which workman claimed was Rs. 43, 778,44 paisa as the wages payable to him w.e.f. 16th October, 1992. This was disputed by the petitioner-employer inter alia on the ground that workman has never reported for duty on reinstatement and therefore he is not entitled to said wages.
(9). The Labour Court while accepting the computation of wages payable for the period from date of termination until date of award, so far as the amount payable for the later period is concerned it found that contention of the workman that he did report for joining the duties on reinstatement but was not allowed to join and the case set up by the employer to the contrary has not been proved and also quanlified the sum payable as claimed by the workman. It also quantified bonus payable for the period. This later part of the order quantifying the sum since the date of award is under challenge.
(10). Firstly, it is con tended that entitlement to any ways for a period after passing the award itself is disputed. Such entitlement could not have been determined by the Labour Court in exercise of its jurisdiction u/S. 33C(2). As the said dispute could legitimately form as a subject matter of an industrial dispute u/S. 10 of the Act of 1947. The nature of the proceedings u/S. 33C(2) are in the nature of execution proceedings where adjudication to the entitlement precedes the question of quantification of the amount payable. Such entitlement cannot be determined by the Labour Court as in exercise of its jurisdiction u/S. 33C(2), as it, like any other executing Court is not empowered to exercise the jurisdiction to decide the question of entitlement.
(11). It was also contended by the learned counsel for the petitioner that even on merit the finding recorded by the Labour Court about the employer refusing to allow the workman to join duty by the respondent is based on no evidence and is perverse which cannot bind this Court, Such error is apparent so as to entitle him to issue of a writ of certiorari under Articles 226 and 227 of the Constitution of India.
(12). Learned counsel for the respondent contended that question as to entitlement arises as an incidental to the quantification of sum, the Labour Court has jurisdiction to decide such incidental question and Labour Court has found as a fact that the workman did report for joining and made a written application for being taken on service but the employer has refused to allow him, therefore, he is not entitled to the emoluments for the period since the award became operative and computation of amount payable for that period has rightly been made by the Labour Court.
(13). So far as the principle that proceedings u/S. 33C(2) is in the nature of execution proceedings after entitlement is adjudicated but determination of entitlement is beyond the jurisdiction of the Labour Court, the same is well established. It is well established that any dispute which legitimately constitute and can form a subject matter of industrial dispute which can be referred for adjudication u/S. 10 of the Act cannot be made the subject matter of adjudication in the proceedings u/S. 33C(2).
(14). It is also welt settled that mere denial of the entitlement by the employer would not make it a question competent to be tried through adjudication u/S. 10, if the question legitimately arises as incidental to giving effect to the award, in whose execution the question has arisen.
(15). This principle governing jurisdiction of Section 33C(2) has long been stated by the Supreme Court in The Central Bank of India Ltd. (In all the Appeals) vs. P.S. Raja-gopalan (1), wherein P.B. Gajendragadkar J. speaking for constitutional Bench said:
“Though in determining the scope of Section 33C Industrial Disputes Act, care must be taken not to exclude cases which legitimately fall within its purview, it must also be borne in mind that cases which fall within Section 10(1) of the Act for instance cannot be brought within the scope of Section 33C”.
(16). The Court further explained:
“When sub-Section (2) of Section 33C refers to any workman entitled to receive from the employer any benefit there specified, it does not mean that he must be a workman whose right to receive the said benefit is not disputed by the employer. Section 33C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. The claim u/S. 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub- Section (2).”
(17). The principle was reiterated In The Jhagrakhan Collieries Pvt. Ltd. vs. Shri G.C. Agrawal, Presiding Officer, Central Governmenl Indusirial Tribunal-cum-Labour Court, Jabalpur & Others (2). The Court said:
“The scope of Section 33C(2) is not the same as that of Section 10(1) of the Act. Although the scope of Section 33C(2) is wider than that of Section 33C(1), cases which would appropriately be adjudicated u/S. 10(1) are outside the purview of Section 33C(2). The provisions of Section 33C are, broadly speaking, in the nature of executing provisions”.
(18). The same principle was reiterated by the Court in Management of Reserve Bank of India, New Delhi vs. Bhopal Singh Panchal (3). When the question of entitlement to full pay and allowances for the period when an employee was deemed to have been suspended due to his involvement in a criminal case till his reinstatement on acquaittal by High Court, was not held triable in the proceedings u/S. 33C(2).
(19). If examined in this light it is apparent that existence of award is not in dispute. The right of the workman to the reinstatement is also not in dispute and on reinstatement entitlement to current wages also not in dispute.
(20). It is also not in dispute that workman has not in any manner discharged his duties since the date of award. In these circumstances question of entitlement to the wages is primarily dependent on determination of the question whether in pursuance
of the award the workman has at all been able to prove his claim that he is willing to join his duties after making of award. This question in my opinion would be primarily a question of determining the execution of award and not of entitlement to the emoluments independent of the award for reinstatement, and could have been determined by the Labour Court in exercise of its jurisdiction u/S. 33C(2) inasmuch as it relates to execution of award in respect of reinstatement in favour of the workman by the Labour Court and he became entitled to be reinstated. If that were not so it will be open to great abuse, and a workman be successively driven to raise adjudication of execution of award viz. whether the employer has given effect to the award or not.
(21). However, from the material on record I am of the opinion that it has not at all been proved that in fact the workman ever reported for duty at any time by making application for joining duties since the award became operative. The undisputed facts before the Court are that award was published on 15.10.96 that is to say it became operative with effect from 15th November, 1992. The principal evidence in support of workman reporting for duty is in the form of Ex. 2 on the record of the Labour Court in submitting the application dt. 29th October, 1992 receipt of which is denied by the petitioner. The workman in his statement has stated that the said letter was given at the Gate to the Chowkidar. The workman admits that he himself did not send the letter but he sent this letter through Union. However, Mr. Satya Narain, who has been examined as representative of Union, though stated that Ex. 2 was sent to the petitioner’s employer for joining at Gale through the Chowkidar, but he further says in clear terms that the said letter was never sent through the Union it must have been given to the Chowkidar by workman himself. Whether he (the workman) has actually sent or not he does not know, in these circumstances it is not possible reasonably to reach the conclusion that letter must have been sent by the workman. There was no occasion for drawing adverse inference against the employer for not producing receipt-register as has been drawn by the Labour Court. If both the witnesses stated that they have not sent the letter in question and does not know to whom they sent letter, how any inference of receipt of that letter by the petitioner could be drawn.
(22). Apart from the above noticed facts emanating from the statements of workman himself and of the Union representative, it is apparent that award did not become operative until the expiry of 30 days from the date of publication of award that is to say on or about 14th November, 1992. The letter Ex. 2 is alleged to have been sent on 29th October, 1992 that is to say before the award became operative. There was not obligation as on that date to take the workman on duty. There is no evidence whatever that the workman ever reported for duty on or after the date the award became operative.
(23). The absence of any material about refusal to reinstate the workman on his presenting for joining in pursuance of an enforceable and operative award and not making any compliant until after expiry of two and half years of the date when award became operative also leads to conclusion that workman after the making of award never reported on duty, when employer could refuse to allow him to join.
(24). In these circumstances the order passed by the Labour Court to the extent it relates to period from 15th October, 1992 until making of the application quantifying the amount payable to the workman as a result of reinstatement for the post award period cannot be sustained.
(25). This petition accordingly partly succeeds and the order of Labour Court under challenge to the extent it quantifies amount payable to the workman for the period after 15.10.92 is quashed.
(26). There shall be no order as to costs.