Tarun Agarwala - (1.) -Heard the learned counsel for the petitioner.
(2.) THE respondent No. 2 filed a claim application under Section 33C (2) of the U. P. Industrial Disputes Act claiming difference of pay. THE workman alleged that he was appointed as a Lower Division Clerk but was made to do the work of a cashier, and, therefore, was entitled to be given the pay scale of a cashier. On the other hand, the employer denied the claim of the workman and contended that the workman, as part of his job, was directed to handle the cash since there was no post of cashier. The labour court, allowed the claim of the workman, holding that since the workman was doing the work of a cashier, he was entitled to be paid the wages of a cashier. The scope of Section 33C (2) was considered by a Constitution Bench of the Supreme Court in Central Bank of India Limited v. P. S. Rajagopalan etc., AIR 1964 SC 743, wherein, the Supreme Court held : "In our opinion, on a fair and reasonable construction of sub-section (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the labour court. Before proceeding to compute the benefit in terms of money, the labour court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the labour court can proceed to compute the value of the benefit in terms of money ; but if the said right is disputed the labour court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the labour court answers this point in favour of the workman that the next question of making the necessary computation can arise." and further held : "The claim under Section 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 must be held to be incidental to the main determination which has been assigned to the labour court by sub-section (2). As Maxwell has observed "where an Act confers a jurisdiction, it immediately also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. We must accordingly hold that 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."
(3.) IN Chief Mining Engineer, East INdia Coal Co. Limited v. Rameshwar and others, AIR 1968 SC 218, the Supreme Court held : "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. Since the scope of sub-section (2) is wider than that of sub-section (1) and the sub-section is not confined to cases arising under an award, settlement or under the provisions of Chapter VA, there is no reason to hold that a benefit provided by a statute or a scheme made thereunder, without there being any thing contrary under such statute or Section 33C (2), cannot fall within sub-section (2). Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 which remains to be computed must fall under sub-section (2) and the labour court therefore, had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer." In Municipal Corporation of Delhi v. Ganesh Razak and another, 1995 (1) LLJ 395, the Supreme Court after reviewing its earlier decisions held : "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 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 33C (2) of the Act. The labour court has no jurisdiction to first decide the workmen's entitlement and then proceeded to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C (2) of the Act." ;