JUDGMENT
Radha Mohan Prasad, J.
1. In this writ petition the petitioner is aggrieved by the order, dated August 9, 1989, passed by the Presiding Officer, Labour Court Bhagalpur, in Miscellaneous Case No. 55 of 1983 contained in Annexure 1, whereby and whereunder the Labour Court in purported exercise of power under Section 33-C(2) of the Industrial Disputes Act, 1947, accepted part of the claim of the applicant-respondent 2 and declared that there were dues of the applicant-respondent 2 of Rs. 8,968.88 as against this petitioner and that respondent 2 was entitled to recover the same.
2. Learned counsel for the petitioner has contended that the very impugned order would show that the claim of entitlement of the applicant was disputed by the petitioner for which there was no earlier adjudication or recognition thereof by the employer, namely, the petitioner and as such, according to him, in view of law settled by the Apex Court in the case of Municipal Corporation of Delhi v. Ganesh Razak and Anr., reported in 1995 (1) SCC 235 : 1995-I-LLJ-395 such disputed claim is clearly outside the scope of a proceeding under Section 33-C(2) of the Act and the Labour Court has no jurisdiction to decide the respondent No. 2’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. In this regard he referred to Para. 5 of the impugned order from where it is clear that the claim of the applicant-respondent 2 for payment of Rs. 370 per month for overtime work taken from him has been seriously disputed by the petitioner. According to the petitioner, the very notification for payment of such overtime has been declared illegal by this Court. It is, thus, contended by Sri Amit Shrivastava, learned counsel appearing for the petitioner, that the impugned order is wholly without
jurisdiction and bad in law and thus, is fit to be quashed on this ground alone.
3. While admitting this writ petition on September 23, 1991 this Court issued notice to respondent No. 2 and stayed the operation of the impugned order (Annexure 1), subject to payment of Rs. 4,000 by the petitioner within a period of two months to respondent No. 2 and the said payment was made subject to the result of the writ application. However, later a petition at Flag A was filed seeking modification of the said order and in the facts and circumstances mentioned therein the Court finally in view of the statement made on behalf of the petitioner that since respondent No. 2 had not been traced out the amount could not be paid modified the said order vide order dated April 29, 1993, and directed the petitioner to deposit the amount in question with the presiding Officer Labour Court, Bhagalpur, by May 19, 1993 through treasury challan or bank draft. Learned counsel for the petitioner has submitted that the said amount was deposited by the petitioner with the Presiding Office, Labour Court.
4. Despite service of notice on respondent No. 2 he has neither filed any counter affidavit nor has entered appearance in the present writ petition. Learned J.C. to S.C. III has fairly submitted that in view of law settled by the Apex Court in the case of Municipal Corporation of Delhi v. Ganesh Razak and Anr. (supra), it is difficult to defend the impugned order (Annexure 1) from perusal whereof itself it appears that the claim of applicant- respondent No. 2 was disputed by the petitioner. The Apex Court in the case of Municipal Corporation of Delhi v. Ganesh Razak and Anr. (supra), has clearly held, in 1995-I-LLJ-395 at p. 400:
“where the very basis of the claim or the entitlement of 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 Apex Court also held that at p. 400 of LLJ:
“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.”
According to the Apex Court it is only when the entitlement has been earlier adjudicated or recognized 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. It has also been held that the power of the Labour Court under Section 33-C(2) extends to interpretation of the award or settlement on which the workmen’s right rests. In the present case, neither there appears to be any award or settlement on. which respondent No. 2 has based his claim. On the contrary, I have already noticed above, the impugned order itself shows that the claim of the applicant-respondent No. 2 I was disputed by the petitioner. As such, Sri Shrivastava, learned counsel appearing for the petitioner, has rightly submitted that the impugned order passed by the Labour Court in the purported exercise of power under Section 33-C(2) is wholly without jurisdiction and bad in law and is fit to be quashed on this ground alone.
5. In the result, the writ application is allowed. The impugned order, contained in Annexure 1, is quashed. However in the facts and circumstances, there shall be no order as to costs.
6. Learned counsel for the petitioner has submitted that since the deposit of Rs. 4,000 has been made by the petitioner in pursuance of the orders of this Court with the Presiding Officer, Labour Court, Bhagalpur subject to result of this writ application and the petitioner has succeeded in the writ petition the Labour Court may be directed to refund the same to the petitioner.
7. However, he has not been able to inform this Court as to whether the said amount has been withdrawn by respondent No. 2 so far. If the said amount has not been withdrawn by respondent No. 2, then the petitioner will be entitled to get refund of the said amount from the Labour Court and for the said purpose he may file an appropriate application along with a copy of this order which shall be finally disposed of within two weeks thereafter and refund be made accordingly to the petitioner.