JUDGMENT
Satya Brata Sinha, J.
1. This appeal a directed against the judgment and order dated August 6, 1998 passed by a learned single Judge of this Court in Matter No. 807 of 1994 whereby Learned Trial Judge dismissed the writ application filed by the appellant, Burn Standard Co. Ltd. challenging an order dated January 25, 1994 passed by the learned Judge, Second Labour Court, West Bengal in Case No. Comp. 12/98 under Section 33-C(2) of the Industrial Disputes Act allowing the application of the workman who is respondent No. 3 before us.
2. The fact of the matter is as follows:-
On November 11, 1983, a Tripartite Settlement was arrived at. The settlement had two parts. An employee covered by the settlement had the option either to retain the existing system of D.A. so prevailing on the date of signing of the settlement or to switch over to Industrial D.A. system and normative scale of pay. It was provided in the settlement that those who will opt for the existing system, shall be entitled to ad hoc increase by Rs. 56/- p.m. with effect from January 1, 1981. They will also be entitled to one time lump sum amount of Rs. 1000/- and henceforth there will be no revision of existing scale of pay nor they will be entitled to any benefit in their wages of total emolument. The time for exercising option to switch over to Industrial D.A. was November 30, 1983. The respondent No. 3 did not exercise option to switch over to Industrial D.A. and normative scale of pay within the stipulated time.
3. By a notice dated November 27, 1983, the period of exercising option was extended upto December 10, 1983. The respondent No. 3 did not exercise option and continued to enjoy the benefits of the settlement earmarked for those who did not opt for normative scale of pay including lump sum of Rs. 1000/- and ad hoc increase of Rs. 56/- p.m. on January 1, 1984, the period of exercising option under the settlement dated November 11, 1983 was extended upto January 8, 1984. The respondent No. 3 did not avail the opportunity of exercising option within the extended period and continued to enjoy benefit of the settlement earmarked for those who would not opt for normative scale of pay. However, admittedly the respondent No. 3 received the benefits granted to the workman who had not opted in term of the 1st settlement.
4. In September, 1984, a writ application being C.O. No. 14803(w) of 1984 was filed by some employees challenging the settlement dated November 11, 1983 as not binding on them. On September 2, 1984, the respondent No. 3 filed an application to be added as a party to the said writ application was allowed by this Court.
5. The period of operation of the settlement dated November 11, 1983 expired on December 31, 1984. On December 14, 1985, Burn Employees’ Union, consequent upon expiry of the period of operation of the settlement submitted fresh charter of demands.
6. Meanwhile, publication of Middle Class Cost of Living Index was stopped from January, 1987 and as a result, revision of BCCI Dearness Allowance could not be made.
7. By a Memo, dated October 25, 1987, it was decided to afford, an opportunity to opt for normative scales of pay and AICPI Dearness Allowance to those who have not exercised option during the period of operation of the settlement. Since a fresh charter of demand was placed it was made clear that this option could be effective simultaneously from the date of effect of revised settlement, if any, on the Charter of Demand – submitted by Burn Employees’ Union. On November 14, 1987, the respondent No. 3 purported to exercise option. On March 18, 1988, a draft agreement between the Management and the Union applicable to only those who opted for normative pay scale was arrived at.
8. On April 6, 1998, respondent No. 3 filed an application for withdrawal of the option submitted on November 14, 1987 and the withdrawal was sought for before entering into Second Tripartite Settlement. On October 7, 1988, Second Tripartite Settlement was arrived at incorporating the draft agreement dated March 18, 1988 to be effective from January 1, 1985. The settlement arrived at on October 7, 1988 was operative upto December 31, 1989.
9. On October 11, 1988 some workmen including respondent No. 3 who have not exercised option under the First Tripartite Settlement filed a Writ Application challenging the First Tripartite Settlement and the draft agreement dated March 18, 1988. No interim order was passed by this Court.
The Writ Application challenging the First Tripartite Settlement dated November 11, 1983 being C.R. No. 14803(w) of 1984 was disposed of by Hon’ble Mr. Justice BHAGBATI PRASAD BANERJEE on September 6, 1990 holding that the petitioners are not entitled to any remedy under Writ Jurisdiction and the said order was passed without prejudice to the right of the petitioner to get adjudicated their disputes in appropriate forum by raising industrial dispute.
On November 20, 1990 respondent No. 3
filed an application for expunging his name
from Second Writ petition on which order was
passed on December 24, 1990.
10. On January 7, 1991 respondent No. 3 retired on superannuation and was paid all his dues.
After about one year from retirement, the respondent No. 3 demanded benefits of the settlement dated October 7, 1988 in reply whereof the company by letter dated February 2, 1992 clarified that there was no basis behind the claim made by the respondent No. 3.
On June 1, 1992 an application was filed by the respondent No. 3 claiming computation of benefits under the settlement dated November 11, 1983 and October 7, 1988 which was allowed by the Second Labour Court on January 25, 1994.
On May 3, 1994 Writ Petition was filed by the petitioner challenging the order dated January 25, 1994.
11. The argument of the learned counsel for the petitioner found favour with the learned trial Judge who rejected the submissions of the learned counsel for the appellant holding: –
“The submission of Mr. Ghosh that such option under the second tripartite settlement could have been exercised only by the workman who has exercised option under the first tripartite settlement is also wholly untenable in view of the fact that it will appear from the circular issued by the Company inviting such options that nowhere it was indicated that only such persons who exercised option in the first settlement would be entitled to exercise such option; on the contrary, it was clearly stated that the workman who did not opt for new scale, would be entitled to do so, and admittedly although the petitioner did not exercise his option either way under the first settlement, the petitioner/Company retained the existing scale of the petitioner.”
12. In the instant appeal the learned counsel for the appellant argued that the computation claimed before the Second Labour Court by the respondent No. 3 could only be possible under Section 33-C(2) of the Industrial Disputes Act provided he established a pre-existing right under the settlement. He relied upon the Clauses 5A(ii) and (iii) of the settlement dated November 11, 1983 which read as follows:-
“Those of employees who will opt for the existing system of D.A. shall be entitled to an ad hoc increase in their total emolument by Rs. 56/- only per month with effect from January 1, 1981. They will continue with the existing pay scale without any change whatsoever. It is further agreed that aforesaid amount of Rs. 56/- shall not be merged with existing basic pay but will be counted for all purposes except for the calculation of D.A.
Those employees who will opt to retain the existing system of D.A. shall be entitled to one lump sum amount of Rs. 1000/- (Rupees one thousand only) and henceforth there will be no revision of their existing scale of pay nor they will be entitled to any benefit in their wages or total emoluments. These employees shall also not be entitled to any promotion till their retirement.”
13. According to learned counsel, the respondent No. 3 having availed himself of the benefits under the above clauses cannot now claim further benefits under normative scales of pay. His further argument is that the respondent No. 3 had no scope for submitting option as settlement dated November 11, 1983 was challenged before the writ Court by him in the writ petition and it was made clear in the circular dated October 25, 1987 that the option would be effective from the date of revised settlement, if any, on the charter of demands submitted by Burn Employees’ Union. His further ground was that the respondent No. 3 withdrew his option by letter dated November 14, 1987 (Annexure ‘F’ of paper book 1) before the Third Settlement was arrived at. He has, therefore, argued that the learned trial Judge misdirected himself without appreciating the points mentioned above and as such the impugned order is liable to be set side.
14. The respondent No. 3 appearing in person argued that he never withdrew his option exercised by him on November 17, 1987 in response to the circular by the Company dated October 25, 1987 inviting such option wherein the writ petitioner was not excluded from exercising option on the ground that he challenged the Tripartite Settlement in the writ petition.
15. Admittedly, the respondent No. 3 exercised option in response to the circular dated October 25, 1987 issued by the Company by way of providing a last chance to those who did not opt out of BCCI D.A. It is also admitted that such circular was necessitated as the revision of quantum of BCCI D.A. as admissible to the employees covered under the said settlement had been discontinued since January, 1987 as the ‘Capital’ no longer published figures relating to Middle Class Cost of Living Index. The option was required to be exercised within 21 days from October 25, 1987. The respondent No. 3 exercised option on November 14, 1987. It will appear from the Tripartite Settlement dated November 11, 1987 (Annexure ‘C’) that the said settlement was to remain in force upto December 31, 1984 and after December 31, 1984 the same would continue to be operative till the new agreement is made. However by a letter dated April 6, 1984 purporting to withdraw his option, the respondent No. 3 has stated:-
“As you are aware, I had to keep your request by submitting the requisite option form annexed thereto on November 14, 1987.
While I find that an ad hoc payment of Rs. 500/- to Rs. 2000/- has already been made in the pay packets of March, 1988 to most of the AICPI D.A. & BCCI D.A. holders of the employees, my option form submitted to you has not been taken into account resulting in non-payment of the above ad hoc amount as yet on technical ground which was not at all categorically embodied in your memorandum cited above.
In view of the above, I shall appreciate it if you will please arrange to return back the said form to me for cancellation within a week of receipt of this letter.”
16. Although the management had been proceeding on the basis that those who had not opted for the first settlement were not entitled to exercise their option in terms of the second settlement, fact remains, that the respondent No. 3 did not derive any benefit under the second settlement and continued to be paid his salary which he had been getting. The said letter dated April 6, 1984, in any event, in unmistakable term shows his intention to withdraw from the said option. There is no provision for return of the option form for cancellation of option. The intention of the respondent No. 3 must be gathered not only from the tenor of his letter dated April 6, 1984 but also upon taking into consideration his subsequent conduct viz. filing a writ application. It has further to be borne in mind that the option was withdrawn before the conclusion of the second tripartite settlement on October 7, 1985. In that view of the matter, the respondent No. 3 cannot be heard to say that he was still entitled to the benefit under the second settlement. This Court also cannot lose sight of the fact that the respondent No. 3, after filing an application for withdrawal from the writ application being C.O. No. 13914(W) of 1983 on November 20, 1990 whereupon an order was passed on December 24, 1990, superannuated on January 7, 1991 and received all dues in terms of the existing scale of pay and other benefits. He admittedly did not at the time of his superannuation received any benefit under the aforementioned settlement. He did not lodge any protest there against but received such retiral benefits without any demur whatsoever. It has to be borne in mind that in the writ application being Civil Rule No. 14803(w) of 1984 which was heard on September 6, 1990 wherein the first settlement dated November 11, 1983 and the notices dated November 27, 1983 and January 1, 1984 were challenged, B.P. BANERJEE, J. disposed of the said writ application holding that the petitioners therein were not entitled to any remedy under the jurisdiction and they may raise an industrial dispute before the Tribunal in accordance with law.
17. By reason of the said order, therefore, a dispute was required to be raised which evidently did not comprehend filing of an application under Section 33-C(2) of the Act but despite the same, such an application was filed by the respondent No. 3 on June 1, 1992 i.e. long after his date of superannuation which, as noticed hereinbefore, took place on January 7, 1991.
18. The submission of the respondent No. 3 to the effect that as no time limit has been fixed for exercising option, such option could be exercised at any time is stated to be rejected. The submission raised to the effect that such a time limit fixed is merely directory in nature is not correct. When a person is required to exercise his option in terms of a scheme, notification or a settlement, he must do so within the time framed. Exercise of option by an employee beyond the time framed does not arise unless the same is expressly extended by the employer. Only because the consequence has not been provided for therein, the same cannot be held to be directory as was sought to be submitted. A provision fixing a time limit asking the public functionary to exercise a public function within a time limit is normally held to be directory but the said rule does not apply in a case of an employee where he is required to exercise his option in terms of a settlement. If the argument of the respondent No. 3 is accepted, the same would result in an absurdity inasmuch as he could exercise his option even after expiry of the period of settlement. In any view of the matter, such a question in the present does not arise inasmuch as noticed hereinbefore the respondent No. 3 had accepted all the benefits to which he was entitled by opting out of the settlement and he having received the said benefit without any demur whatsoever must be held to be stopped and precluded from questioning the same. In case of this nature even the doctrine of acceptance sub-silentio shall be attracted.
19. The learned Labour Court although noticed the contention of the appellant herein that the respondent No. 3 did not have any pre-existing right, failed to answer the same. Furthermore the settlement dated October 7, 1988 was applicable in respect of employees who were on normative scales of pay and were enjoying AICPI pattern of D.A. Clause 5.1 of the settlement reads thus:-
“It is agreed by and between the parties that the terms are for full and final settlement of the instant charter of demands and will be applicable to the employees who are on normative scales of pay and are enjoying AICPI pattern of D.A.”
20. Furthermore, the respondent No. 3 was not on normative scales of pay and was not enjoying AICPI pattern of D.A. and as such the said settlement cannot have any manner of applicability in respect of respondent No. 3. The respondent No. 3 had already availed of the benefits of alternative provision under the settlement dated November 11, 1983. The respondent No. 3 had withdrawn the option submitted on November 14, 1987 before the second tripartite settlement entered on October 7, 1988 and there was no provision for return of option form.
21. Furthermore there was no scope for accepting the option since the respondent No. 3 had challenged the settlement by filing Writ Application being C.O. No. 13914(W)of 1988 causing legal impediment and even the first Writ Application challenging the settlement dated November 11, 1983 was pending at the material time.
22. Furthermore, when the respondent No. 3 got his name expunged from the second writ petition on December 24, 1990, by that time the period of operation of the settlement dated October 7, 1988 expired as the same was operative upto December 31, 1989 and the fresh Charter of demand was filed on August 21, 1990.
23. Consequently there did not arise any question of having any pre-existing right under the settlement dated October 7, 1988 which was the sine qua non for maintaining an application under Section 33-C(2) of the Industrial Disputes Act.
24; It further appears that the order of the Labour Court impugned in the writ application was perverse and suffered from non-application of mind as regard the purported enjoyment of benefit under settlement dated November 11, 1983 relating to the existing pay scale with BCCI D.A.
25. Ajit Kumar Ghosh, in his deposition on March 23, 1993 had categorically stated that the option form was not submitted as it appeared to the workman to be anti labour. He submitted that despite non-submission of option form, the management gave the workman all benefits of existing pay scale with BCCI D.A. Furthermore, as the respondent No. 3 had enjoyed the benefits of settlement dated November 11, 1983 as regard Clauses 5A(i) and (iii) of the said settlement is concerned there had been no scope for him to enjoy both the benefits thereunder and hence the computation on the basis of Clause 5A(i) of the Industrial D.A. system and normative pay scale did not arise.
The respondent No. 3, therefore, could not have claimed double benefit under the said settlement. The learned Labour Court also did not assign any reason as to why such pre-existing right existed. It was merely held:
“As he was a workman and as his lawful claim is alleged to have been denied by O.P., the petition is well maintainable.”
26. No reason has been assigned in
support of the said finding which he was found
to do. The learned Labour Court did not consider the implication of the filing of the two writ applications questioning the said settlement, and particularly the fact that respondent No. 3 himself filed an application in the first writ petition for impleading himself as a party therein. The learned Labour Court as also the learned trial Judge were remiss in so far as they did not consider the evidence of respondent No. 3 to the following effect:-
“Before my retirement there were two Tripartite Settlements on November 11, 1983 and October 7, 1988 and the effective dates were January 1, 1981 and January 1, 1985 respectively. There were two options for the same category of workmen one was according to revised pay scale with AICPI D.A. and another according to the existing pay scale with BCCI D.A. We did not submit any option form as it appeared to us that the said agreement was anti-labour. Inspite of non-submission of option form the management of the Company gave us the benefit of existing pay scale with BCCI D.A. basis.”
27. Thus, the observations made to the effect that the appellant had not challenged the claim properly or no averment had been made in the appellant’s objection that the respondent No. 3 was not entitled to revise pay scale under the tripartite settlement was contrary to the materials on record. Furthermore, finding of the learned trial Judge to the effect that no objection has been raised by the appellant to the effect that the respondent No. 3 was not entitled to have a scale under the tripartite settlement appears to have been arrived at without considering the admission made on the part of the workman that he was getting the enjoyment of the benefit under Clauses 5A(ii) and (iii) of the settlement dated November 11, 1983.
28. Even assuming that the appellant did not raise the said question in the proceedings before the Labour Court, the writ application was maintainable at the instance of the appellant if it could be shown that on the basis of the materials placed before the Labour Court itself, no application under Section 33-C(2) was maintainable. The learned Labour Court could
not have thrust upon himself a jurisdiction which it did not have on the basis of the averments made in the application filed by the respondent No. 3 or on the basis of the materials produced before it. In any event, as is evident from the order passed by the Labour Court itself that such a question had been raised.
29. It is not disputed that an application under Section 33-C(2) of the Industrial Disputes Act would be maintainable provided the same is based upon a pre-existing right. A proceeding under Section 33-C(2) is in the nature of an execution proceeding. Where rights and obligations of the parties are required to be adjudicated upon, an industrial dispute has to be raised and such rights and obligations of the parties cannot be adjudicated in a proceeding under Section 33-C(2) of the Act.
30. The plea raised by respondent No. 3 before us that he being a single workman could not have raised any industrial dispute is correct but for the said purpose, in view of the order passed by this Court the Union could have raised an industrial dispute. In view of the order passed by B.P. BANERJEE, J. it was obligatory on the part of the concerned workman to take recourse to the ‘collective bargaining’ by raising an industrial dispute as this Court itself used the word ‘adjudication’ it must be held to be aware of the implication thereof and, thus, the respondent No. 3 could not have asked the Labour Court to adjudicate upon the dispute in a proceedings under Section 33-C(2) of the Industrial Disputes Act indirectly which it could not do directly.
If a Court passes an order without jurisdiction, the same becomes a nullity.
31. In Central Inland Water Transport Corporation Ltd. v. Workmen, , it has been held:
“In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiffs 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 determination in execution proceedings. But that is not the case with the determination 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) and represent 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 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. Khandewal (1968-I-LLJ-589) (SC) 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 which requires a reference under Section 10 of the Act.”
32. In East India Coal Co. v. Rameshwar, reported in 1968 AIR SC 280 : (1968-I-LLJ-6) it has been held at p. 9 of LLJ:
“It is clear 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.”
33. In Punjab Beverages v. Suresh Chand, , it has been held:
“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 money which is sought to be calculated, or to the benefit which is sought to be computed must be an existing one, i.e. 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 Ltd. v. Rameshwar 1968 AIR SC 280 : (1968-I-LLJ-6). 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.”
34. In Municipal Corporation of Delhi v. Ganesh Razak and Anr., , it has been held at pp 398 & 400 of LLJ:
“8….. This decision indicated that the power of the Labour Court under Section 33-C(2) extends to interpretation of the award of settlement on which the workman’s right rests, like the Executing Court’s power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned Counsel for the respondents…..
“12. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workman to a certain benefit as dispute, 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, therefor, clearly outside the scale of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workman’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 settlement 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 Executing Court’s power to interpret the decree for the purpose of its execution.”
35. In Union of India v. Gurbachan Singh, the Apex Court held at p. 828 of LLJ:
“3. The power and jurisdiction of the Labour Court/Industrial Court under Section 33-C(2) of the Industrial Disputes Act, 1947 were dealt with by this Court in Municipal Corporation of Delhi v. Ganesh Razak (supra). It was held that the Labour Court is devoid of power and jurisdiction to adjudicate upon fresh claim or to give directions on that basis. The Labour Court at best has power to interpret the award and then work out the wages payable to the workmen in terms of the award etc. Shri Singhvi, learned Additional Solicitor General appearing for the petitioner, contends that in view of the above decision, the view taken by the Labour Court is not correct in law. We find some force in the contention raised by the learned counsel. However, in view of the law already settled by this Court in the above judgment, we think that on the facts and circumstances, this case does not, warrant interference. However, it is directed that the judgment of the High Court or Labour Court should not be treated as a precedent for any future cases as it is not consistent with the law laid down by this Court.”
36. In Fabril Gasosa v. Labour Commissioner and Ors. , Dr. ANAND J. (as His Lordship then was) applied the principles laid down by the Constitution Bench in Kays Construction Co. (P) Ltd. v. State of U.P. , stating (1997-I-LLJ-872) at 878-879:
“20. A Constitution Bench of this Court in Kays Construction Co. (P) Ltd. v. State of U.P. (supra) while considering the scope of Sections 6-H(1) and (2) of the U.P. Industrial Disputes Act, 1947, which provisions are in pari materia with Sections 33-C(2) and (2) opined:
“The contrast in the two sub-sections between ‘money due’ under the first sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes ‘money due’ under the second sub-section shows that mere arithmetical calculations of the amount due are not required to be dealt with under the elaborate procedure of the second sub-section. The appellant no doubt conjured up a number of obstructions in the way of this simple calculation. These objections dealt with the ‘amount due’ and they are being investigated because State Government must first satisfy itself that the amount claimed is in fact due. But the antithesis between ‘money due’ and a ‘benefit which must be computed in terms of money’ still remains, for the inquiry being made is not of the kind contemplated by the second sub-section but is one for the satisfaction of the State Government under the first sub-section. It is verification of the claim to money within the first sub-section and not determination in terms of money of the value of a benefit.”
“21. The law laid down by the Constitution Bench applies with full force to the facts of the instant case and in view of the established facts and circumstances of this case, recourse to the proceedings under Section 33-C(1) of the Act by the Union was just and proper.”
37. In Chief Supdt. Government Livestok Farm, Hissar v. Ramesh Kumar, it has been held at p. 188 of LLJ:
“2. The remedy of Section 33-C(2) of the I.D. Act is available only when there is no dispute about entitlement of the workman. That remedy cannot be invoked in a case where the entitlement is disputed. In the instant case, the entitlement of the respondent to regular scale was disputed by the appellant and, therefore, it was not a case in which the remedy of Section 33-C(2) could be invoked. The proper course for the respondent was to have his entitlement to regular scale determined by a competent Court or Tribunal and in the event of non-payment of the amount payable to him as per his entitlement under such determination he could invoke the remedy under Section 33-C(2).
38. Yet recently in Tara and Ors. v. Director, Social Welfare and Ors., Apex Court has followed Municipal Corporation of Delhi v. Ganesh Razak, reported in (supra) at p. 632 of LLJ:
“2. This is obvious from the fact that the status and nature of employment of the appellants is itself disputed and unless there is a prior adjudication on merits of the status which is the foundation for making the claim for wages at the specified rates, the question of moving an application under Section 33-C(2) for computation of the wages does not arise. We find that the Labour Court has recorded some findings which may be relevant for the disputed status of the appellants as Anganwadi workers/helpers even though it has rightly reached the conclusion that the applications do not lie under Section 33-C(2) of the Act. It is clear that the question of maintainability of the applications under Section 33-C(2) was required to be determined at the threshold and the question of examining the appellants’ claim merits relating to their status could have been gone into thereafter if the applications were held to be maintainable under Section 33-C(2). In view of the conclusion rightly reached by the Labour Court that the applications were not maintainable under Section 33-C(2), its other findings relating to the status and nature of employment of Anganwadi workers/helpers were wholly uncalled for. All such findings are, therefore, not to be construed as deciding any point relating to the status of the appellants.”
39. The learned trial Judge unfortunately has not considered these aspects of the matter and arrived at a wrong conclusion.
40. For the reasons aforementioned the impugned judgment and order passed by the learned trial Judge, cannot be upheld which is accordingly set aside and the application filed by the respondent No. 3 before the Labour Court is held to be not maintainable. This appeal is, thus, allowed. However, there will be no order as to costs.
S.N. Bhattacharjee, J.
I agree.