MISRA, J. - (1.) THIS appeal has been preferred by the management of M/s. J. K. Synthetics Ltd. , against the judgment and order of the learned single judge dated 6. 7. 1993 whereby the award passed by the Labour Court. Kota upholding the order of dismissal of the respondent-workman was quashed and set aside and the appellant-management was directed to reinstate the respondent-workman in the service of the appellant-industry. In so far as grant of back wages is concerned, the learned single judge was pleased to grant liberty to the respondent-workman to avail the remedy for back wages by filing an application under Sec. 33c (2) of the Industrial Disputes Act, 1947 (shortly referred to as `the Act') and it was observed therein that if any application is filed by the workman claiming back wages, the respondent management (appellant herein) shall be free to plead and prove that the workman was gainfully employed and, therefore he is not entitled for back wages either in whole or in part.
(2.) LEARNED counsel for the appellant Mr. Maloo, while assailing the impugned order first of all informed this Court that the management of the factory of the appellant-company has been transferred and an agreement had been executed between the appellant-company and the union of workmen of this factory wherein the workmen had agreed not to press for wages from the management of the company and even the regular employees had agreed to forfeit their right to claim wages. On this information, this appeal apparently appears to have been rendered infructuous in our view, but the counsel for the appellant stated further that in case the observation of the learned single judge is not set aside, it is likely that the respondent workman may feel encouraged to claim wages under Sec. 33 C (2) of the Act by virtue of the liberty left by the learned single judge. We, therefore, thought it proper to consider the justification of the observation made by the learned single judge in regard to grant of back wages and we noticed that the learned single judge on the one hand has held that the respondent-workman although would be entitled to reinstatement with consequential benefits, no specific order granting back wages had been passed, meaning thereby that the back wages had clearly not been allowed in favour of the respondent workman. But on the other hand the learned single judge has held that the workman shall be free to avail remedy under Sec. 33c (2) of the Act claiming back wages and in case such an application is filed, the appellant- management was granted liberty to raise the plea regarding the question as to whether the workman was gainfully employed during all these years or not. We find contradiction in the order of the learned single judge in this context, for once the learned single judge refused to grant back wages, the question of its computation under Section 33c (2) of the Act do not arise at all as Sec. 33c (2) clearly states as follows:- " 33c. Recovery of money due from an employer (1) xxx xxx xxx (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. " A perusal of the aforesaid provision indicates that the wages of the workman can be computed under Section 33 C (2) when the workman is clearly entitled to receive wages from the employer and it would be computed only if his entitlement is free from controversy and dispute. Entitlement of wages vide order of a competent authority or a court of competent jurisdiction is a condition precedent before an application can be entertained under Sec. 33c (2) by the payment of wages authority. In the instant matter when the learned single judge has clearly held that the respondent-workman is not entitled to wages as no relief was granted on that count, he was clearly dis-entitled for computation of wages under Sec. 33c (2) The obvious fallout of this would be that the liberty granted to the respondent-workman to file an application under Sec. 33c (2) for computation of his wages, do not arise at all, for once the workman was not held entitled to wages, the onus thrust upon the appellant-management to prove that he was in gainful employment during the last so many years do not arise at all. It has to be taken note of that the question of grant of back wages was one of the principal and integral part of the reference of dispute including question of reinstatement of the employee and that question ought to have been considered while deciding the reference. Since the reference had been decided against the workman by the Labour Court, against which the writ petition was allowed quashing the award and passing the order for his reinstatement, the question regarding grant of back wages also lay within the domain of the jurisdiction of the learned single judge to grant or disallow it and in case the learned single judge thought that the evidence in regard to gainful employment of the workman was fit to be considered, the said question could have been remanded to the Labour Court for consideration. In any view, the same could not have been left open to be decided by the Court while entertaining the application under Sec. 33c (2) of the Act as that part does not lie within the jurisdiction of that Authority entertaining an application under Sec. 33c (2) of the Act. Since we have already stated herein-before that an application under Sec. 33c (2) of the Act clearly postulates the entitlement of workmen to wages by a competent authority or a Court of competent jurisdiction, the computation and computation alone is fit to be decided while entertaining an application under Sec. 33c (2) The jurisdiction under Sec. 33c (2) is almost akin to the function of the executing Court under the code of Civil Procedure where the executing court merely has to execute the decree passed by a Court of competent jurisdiction. So also while entertaining an application under Section 33c (2), the Court has merely and essentially to compute the wages on the basis of the remuneration to which the workman is held entitled but insofar as the entitlement is concerned, the said function is of the Labour Court which decides the reference, and it is at that stage the question as to whether the employee was gainfully employed or not is to be considered. In the instant matter since the reference has been decided against the workman with which the single judge interfered, the question as to whether the workman was entitled to back wages or not, also was fit to be considered by the single judge or by the Labour Court on remand. We feel that the liberty granted to the respondent workman to file an application for computation of wages under Sec. 33c (2) of the Act, do not arise at all and the order of the learned single judge has resulted into contradiction for once it was held that the workman was not entitled to back wages, then grant of liberty to file an application under Sec. 33c (2) of the Act for computation of wages did not arise at all and consequently, the burden on the management to prove that the workman was in gainful employment during the period in which he was out of service also do not arise at all. We therefore, set aside the operative portion of the judgment and order of the learned single judge leaving liberty to claim back wages to the respondent-workman by filing an application under Sec. 33c (2) of the Act. The appeal is thus partly allowed and stands disposed of. .;