D.K. Seth, J. - (1.) The relief sought for:
(2.) IN this case the Union has approached this Court in writ jurisdiction for implementation of Clause 8(iii) of the Bipartite Settlement dated April 3, 1996 (Annexure "P -4"), in view of the fact that in terms of the said Clause by virtue of certain agreement, certain amount was paid by the employer to the employees of the Braithwaite Burn & Jessop Construction Co. Ltd. (BBJ), which sought to recover the said advance at the time of retirement, as is apparent from Annexure "P - 12" of the writ petition. Preliminary objections by BBUNL: Mr. P.S. Sengupta, learned counsel for the respondent BBUNL, a holding company, has raised three objections to the maintainability of the writ petition. The first one is that the claim that has been lodged herein, is a subject matter of a disputed question of entitlement, which can only be decided by an Industrial Tribunal and not by this Court. The second ground was that even if, it is not a disputed question, it can be recovered under Section 33 -C(1) of the Industrial Disputes Act, 1947, since the claim is founded on a Bipartite Settlement, which does not stand on a footing higher than that of an award, which has no statutory force to be enforced through writ jurisdiction. Therefore, the writ jurisdiction cannot be invoked in the present case. The third question raised is that the said question is a subject matter of conciliation proceeding. Thus having resorted to the alternative remedy, the petitioner cannot come before this Court to seek the self -same remedy. Petitioners contention:
(3.) MR . Bikash Bhattacharyya, learned counsel for the petitioners, contends that the claim has not been founded on any disputed question. On the other hand, at every point of time the BBJ has assured the Union that payment would be made as soon as the approval of BBUNL would come and in anticipation of such approval, advance amounts were paid. But, at the time of retirement, this was sought to be deducted from the terminal benefits. It is not a disputed question of fact. It is an existing right. The same right is being allowed to every category of staffs. Therefore, the same cannot be denied in so far as the sub staffs are concerned. Therefore, all these three grounds that have been taken cannot be sustained. He further contends on merit that the respondents had allured the union to wait by pointing out to the approval of BBUNL and even to the extent of giving advance, by reason whereof the union did not take any steps to approach the authority under the Industrial Disputes Act and, therefore, they cannot turn round and question the same. He had relied on a decision of this Court in the Workmen represented by West Bengal Medical and Sales Representatives Union v. Indian Drugs and Pharmaceuticals Limited, 2002 (92) FLR 78 and Mackinnon Mackenzie & Co. Ltd. v. : (1987)ILLJ536SC in support of his contention. Submission of BBJ:;