W.P. No. 5310.11 Writ Petition No. 5310 of 2011 (Ramesh Kumar Jain v. Jal Sansadhan Vibhag, Bhopal and another) 30/09/2011 Shri Ashok Shrivastava, learned counsel for the petitioner. Heard. Challenge put forth by petitioner in this petition under Article 227 of the Constitution of India is to an order dated 06- 12-2010 passed by the Labour Court No.2, Bhopal; wherein an application preferred by petitioner under section 33C(2) of the Industrial Disputes Act, 1947, has been rejected. The claim vide said application put forth by petitioner before the Labour Court was to the tune of Rs. 14,92,483.59 with interest @ 18% per annum in respect of medical bills, travelling allowance bills, monthly wages from 01-03-1984 to 31- 03-1986, city compensatory allowance, an amount towards zerox copies used during the departmental enquiry and an amount towards typing etc. The petitioner also claimed the amount towards general provident fund from January 1995 to June 1995. The Labour Court rejected the application on the ground that it is beyond its jurisdiction to compute the entitlement of the W.P. No. 5310.11 petitioner and then direct execution thereof. The question is as to whether the Labour Court was justified in rejecting the application filed by petitioner. Section 33C(2) of the Act of 1947 stipulates- "33C. 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." In Municipal Corporation of Delhi v. Ganesh Rajak: (1995) 1 SCC 235; it has been observed in paragraph 12 :- "12- .......It is only when the entitlement has been earlier adju dica ted 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 W.P. No. 5310.11 to the Labour Court's power under Section 33C( 2) like that of the Executing Court's power to interpret the decree for the purpose of its execution." In State of Uttar Pradesh & another v.Brijpal Singh (2005) 8 SCC 58 it is observed :- " 10. It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A 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 Pvt. Ltd. Vs. Suresh Chand, (1978) 2 SCC 144 held that a proceeding under Section 33C(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. This Court further held as follows: "It is not competent to the Labour Court exercising jurisdiction under Section 33C(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. " W.P. No. 5310.11 In Krishnan and another v. Special Officer, Vellore Cooperative Sugar Mill and another : (2008) 7 SCC 22; it is observed : - "12. ..................The fact that proceedings under Section 33C(2) are in the nature of execution proceedings is in no doubt, and such proceedings presuppose some adjudication leading to the determination of a right, which has to be enforced. Concededly there has been no such adjudication in the present case. It will be seen that the reliance of the appellant- workmen is exclusively on documentary evidence placed on record which consisted primarily of the punch time cards and the representations that had been filed from time to time before the respondents. It is
also true that the claim raised by the
appellants had been hotly disputed by the
respondents. The question that arises in this
situation is whether reliance only on the
documentary evidence was sufficient to prove
the case.
13. We are of the opinion that the
reference to Municipal Corporation’s case
(supra) is completely misplaced as in that
matter, the fact that different categories of
workers were doing identical kind of work
was virtually admitted but different scales of
pay were nevertheless being paid to them. It
is also relevant that oral evidence had been
adduced by the workmen to supplement the
documentary evidence and it was in that
situation that the Court felt that an
application under section 33C(2 ) was
maintainable.”
In the case at hand, admittedly, there is no
prior adjudication of the right of the petitioner in
respect of the claim he had put forth before the
W.P. No. 5310.11
Labour Court. The petitioner in order to maintain
an application under section 33C(2) has to first
get his entitlement adjudicate, then only an
application under section 33C(2) of the Industrial
Disputes Act, 1947, is tenable.
In view of above we are of the considered
opinion that the Labour Court was justified in its
approach in rejecting the application filed by the
petitioner as in absence of any award or
settlement ignoring the pre-existing right of the
petitioner, the same could not have been allowed.
In the result petition fails and is hereby
dismissed.
(SANJAY YADAV) (T.K.KAUSHAL) JUDGE JUDGE SC