A.P.RAVANI, M.P.THAKKAR - (1.)Enter through the door marked 10(1) and not through the door marked 33C says the Labour Court whilst rejecting the recovery application made by an employee who complains of that though he is in fact doing the work (for which a higher pay scale is agreed upon) he is not paid on that basis by the employer. It is common ground that the very Labour Court would have jurisdiction if a reference was made under sec. 10(1) of the Industrial Disputes Act 1947 (I. D. Act) inasmuch as the number of employees is less than 100 It is however the view of the Labour Court that it cannot do so in exercise of powers under sec. 33C(2) in the absence of a reference under sec. 10(1). Can the jurisdiction of the Labour Court under sec. 33 of the I. D. Act be ousted merely by denying that he is doingsuch work ? Can he be obliged to apply to the State Government to make a reference under sec. 10(1) of the I. D. Act on the premise that an industrial dispute exists or is apprehended ? Is the jurisdiction of the Labour Court under sec 33C ousted on any of the following grounds ?:
(1) It involves creation of a new right and not enforcement of an existing right and the Labour Court cannot exercise jurisdiction under sec. 33C(2) on that account.

(2) It is a collective dispute which can be resolved only by seeking a reference under sec. 10(1) and not by invoking powers under sec. 33C. This submission is urged in the context of the fact that 58 other workmen have filed similar recovery applications which are still pending in the Labour Court.

(3)It is a dispute relating to classification or categorisation which Labour Court can resolve only in the context of a reference under sec. 10(1) and not in a proceeding under sec. 33C. These are the questions which confront us in this petition under Article 227 of the Constitution which has been instituted in the background of facts recounted hereinbelow.

(2.)The facts are not in dispute. An industrial dispute had arisen between the respondent Indian Farmers Fertiliser Cooperative Limited Kalol Unit hereinafter referred to as the employer and its employees. The dispute was settled and a settlement was arrived at in the course of conciliation proceedings before the Conciliation Officer under sec. 12 of the Industrial Disputes Act on 5/07/1975 which was made effective retrospectively from 1/01/1973 Clause 3.0 of the terms of settlement provided as under :
"3.0. REVISION OF PAY SCALESDEMAND No. 1 of the Charter of demands: 3 1 As a consequence of the Third Pay Commissions recommendations as accepted by the Government of India the situation in respect of basic salary and Dearness Allowance has changed qualitatively. While IFFCO has been following the Central Government actions so far in the matter of interim relief and Dearness Allowance the substantial changes introduced by the Third Pay Commission has necessitated a fresh look at the Basic pay structure and other allowances. In pursuance of the above the payscales of the workmen in the present scales of pay have been revised to the scales as shown against each below
JUDGEMENT_725_GLR1_1983.htm
The petitioner is a member of the Union namely IFFCO Karmachari Sangh Kalol. It is his case that as per the agreement he falls in the category to which the payscale of Rs. 225-9-333 is applicable as per the settlement and yet he is being paid as per the pay scale for the lower category which carries the pay scale of Rs. 210-8-314. On these premises he instituted a Recovery Application under sec. 33C(2) which has given rise to the present petition on 12/07/1979 The Labour Court took the view that it had no jurisdiction in exercise of powers under sec. 33C(2) to grant the relief prayed for by the petitioner substantially on the ground that the relief claimed by him was not based on an existing right. The view taken was that the petitioner should raise an Industrial Dispute and seek a reference under sec. 10(1) of the Industrial Disputes Act rather than invoke the jurisdiction of the Labour Court under sec. 33C(2). Thereupon the petitioner has approached this Court by way of the present petition under Article 227 of the Constitution of India.

(3.)It is the case of the petitioner that he is assigned the work Of a Conveyor Attendant of a Bag Stitcher of a Bag Filler and of a Pointsman. Reliance is placed on the Memorandum of settlement as per Annexure B wherein it is agreed that such of the employees who are doing the work as Conveyor Attendants Bag Stitchers and Bag Fillers etc. fall within category (L1) and the pay scale applicable will be 225-9-333. The employer resisted the application inter alia on the ground that the Labour Court had no jurisdiction. In so far as the averment in regard to the nature of the duties performed by the petitioner was concerned there was a halfhearted and vague denial in paragraph 4 of the written statement. It was denied that the applicant was discharging the duties solely and continuously of Conveyor Attendant Bag Stitcher and Bag Filler and Pointsman from the date of his joining. It was stated that the applicant had beep posted as Mazdoor in Bagging and Material Handling Department. Two salient features must be highlighted: (1) It is not contended that the petitioner is not doing the work as Conveyor Attendant / Bag Stitcher / Bag Filler or Pointsman at all: (2) What is contended is that the applicant has not been continuously discharging such duties. It would mean that the fact that the petitioner was discharging such duties for some time is not disputed. What is disputed is that he was continuously discharging such duties without interruption. (3) It is stated that these were not the only duties that he was discharging but he was also discharging some other duties. (4) That he was not discharging these duties from the date of his joining meaning thereby that he was discharging these duties with effect from some later date. Now admittedly as per the agreement if the petitioner was discharging duties as a Conveyor Attendant Bag Stitcher Bag Filler or Pointsman he was entitled to be placed in the pay scale as specified in category (L1) carrying the pay scale of Rs. 225-9-333. He is however placed in the pay scale referable to category carrying the pay scale of Rs. 210