SACHAR, J - (1.) THIS petition challenges the order of 31st January, 1973 passed by respondent No, 1, Labour Commissioner Rajasthan Ex. P/19 by which he has ordered that a certificate for the amount claimed by respondent Nos. 6 to 31 (the employees of the petitioner Board) be issued in favour of the Collector, Nagaur for recovery of the said amount from the petitioner.
(2.) THE petitioner had a power house which generated electricity and supplied it to the town of Merta. Respondents Nos. 6 to 31 were the employees of the petitioner. THE power house was taken over by the Rajasthan State Electricity Board, respondent No. 2 and respondents Nos. 6 to 31 were thereafter transferred to respondent No. 2. On 6-4 71 an application was moved by respondent Nos. 6 to 31 under sec. 33g (1) of the Industrial Disputes Act (hereinafter to be called "the Act") to the Board respondent No. 1 claiming that they were entitled to retrenchment compensation from the petitioner and that order may be passed in that connection. A statement showing the compensation due to each of the respondents was attached along with the petition which showed a total of Rs. 28,353/- as retrenchment compensation. On a notice having been issued by respondent No. 1 the petitioner Board did not file any reply though a reply was filed by respondent No. 2 Electricity Board in which it was pleaded that if the employees are entitled to any compensation the same could only be recovered from the Municipal Board and not from the respondent No. 2 Respondent No. 1 considered this matter by its order dated 18-12-71 and took the view that the respondents Nos. 6 to 31 could raise this dispute either as an industrial dispute or under sec. 33c (2) of the Act and that their application for payment of retrenchment benefit was not maintainable as he had no jurisdiction to do so. It seems however that the next day it was brought to his notice that some orders had been passed in the case of power house. Barmer and he therefore decided to review the matter in the light of that. On 16 9-72 the petitioner Board appeared before respondent No. 4 and took the stand that it had no jurisdiction in the matter in view of the decision of 1969 LLJ Vol. II, 728 U. P. Electric Supply Go. Ltd. vs. Shukla & sons. THEreafter the matter was adjourned to 13-10-72 and thereafter to 24-10 72. No one appeared on behalf of the petitioner and the matter had to be adjourned to 24-11-72. On that day also no one appeared on behalf of the petitioner and a telegram was sent for adjournment of the case and the respondent No. 1 therefore adjourned the matter. THE next date fixed was 31-1-73 and on that day also nobody appeared on behalf of the petitioner but the Chairman, Municipal Board sent a telegram for adjournment of the case without specifying the reason for adjournment. As respondent No. 1 did not see any justification to adjourn this request was refused and the respondent No. 1 after considering the merits of the case and considering that no liability arose to pay retrenchment benefit to the former employees of the Municipal Board who had been transferred to the new employer respondent No. 2 it held that retrenchment benefit was to be paid to respondents Nos. 6 to 31 by the petitioner. It therefore directed that a certificate for recovery of the said amount be issued. It appears that subsequently the petitioner approached the respondent No. 1 for saying the certificate of recovery but the same was refused by respondent No. 1 by his order dated 4-7-74. THEreafter the petitioner has filed the present writ petition on 15-7-71 impugning the order of respondent No. 1 dated 31-1-73. The main contention of the petitioner is that an application under sec. 33c (1) of the Act was not maintainable as the said provision applies only if there is an admitted liability and the amount had been ascertained and that the same cannot be said in the present case because the petitioner was disputing that he was liable to pay any retrenchment compensation. Now sec. 25f lays down the condition which have to be fulfilled before an employer can be retrenched and requires the employer to pay compensation provided in the said section. Sec. 25ff provides that where the ownership or management of an undertaking is transferred whether by agreement or by operation of law from the employer in relation to that undertaking to a new employer every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of sec. 25f as if the workman had been retrenched. The proviso to sec. 25f provides the eventuality in which retrenchment compensation will not have to be paid. One of the conditions being that the service of the workman has not been interrupted by such transfer. It is clear that the main part of sec. 25ff lays down a liability to pay retrenchment compensation on the employer who by agreement or by operation of law transfers the undertaking. In the present case the respondent Nos. 6 to 31 were undoubtedly the employees of the petitioner. If sec. 25ff applies then evidently so far as the liability to pay retrenchment compensation under the Act is concerned the same will lie on the petitioner. It is a different aspect if petitioner's plea is that in fact it is entitled to reimbursement for the amount paid by it from the new employer; that plea obviously cannot form the subject matter of proceedings under the Act and necessarily will have to be taken separately if the old employer so feels. Sec. 33c (1) provides that where any money is due to a workman from an employer under a settlement of an award or under the provisions of Chapter V A the person may apply to the appropriate Government for the recovery of money due to him and if the appropriate Government is satisfied that any money is so due it shall issue a certificate for that amount to the Collector. Sec 25ff of the Act forms a part of Chapter VA of the Act. Thus on a plain reading of sec. 33c (1) if any money is due to a workman under the provisions of Chapter VA he can apply to the appropriate Government under sec. 33c (1 ). This is what the respondents No. 6 to 31 did. The argument of the counsel for the petitioner Mr. Vyas however is that sec. 33g (1) only encompasses cases where there is no dispute about the liability of the employer or certainty of amount and it is not attracted when the petitioner was disputing his liability. It may be mentioned that sec 33c (2) provides for an application being made to the Labour Court when a workman claims that he is entitled to receive any money or any benefit which is capable of being computed in terms of money. The interpretation of sec. 33c (1) and 33c (2) has come up before the Supreme Court in a number of cases. It is unnecessary to make a reference to all of them and it is enough to refer to East India Coal Co. vs. Rameshwar (2) (967 S. C. 218) where the various propositions as to the scope of sec. 33g (2) were deduced from the prior decisions. From those propositions it is clear that sec. 33c is a provision in the nature of execution proceeding and that the scope of sec. 33c (2) is wider than that of sec. 33c (1 ). Proposition 4 was stated as under: - " (4) Section 33c (1) applies to cases where money is due to a workman under an award or settlement or under Chapter VA of the Act already calculated and ascertoiued and therefore there is a dis-there is no dispute about its computation. But sub-section (2) applies both to non-monetary as well as monetary benefits. In the case of monetary benefit it applies were such benefit though due is not calculated and pute about its calculation. " Mr. Vyas relies mainly on 1969 LL J Vol II- 728 to urge that if a dispute arises concerning the retrenchment compensation even the labour court will not have the jurisdiction to deal with it. The counsel therefore urges that if the labour court under sec 33c (2) could not examine the matter of retrenchment compensation muchless could respondent 1 under powers under sec. 33g (1) entertain the present application of repondent Nos. 6 to 31. It is true that in that case the observations of the Supreme Court seem to suggest that if there is a dispute about whether retrenchment compensation is payable or not then power under sec. 33g (2) cannot be exercised by labour court to decide this matter if the liability is not admitted by the employer. This view has however not been accepted by a later decision of five Judges of the Supreme Court reported in 1972 vol. I, L. L. J. 321-R. B. Bansilal Abirchand Mills Go. Ltd. vs. Labour Court, Nagpur where it was stated that these observations could not be bind-ing on the court as all the aspects were not placed before the earlier bench. In thas case the court therefore held that the labour court had jurisdiction to entertain the application for lay off compensation under section 33g (2) of the Act. It may be mentioned that the lay off provision under section 25g read with 25e also forms a part of Chapter VA mentioned in section 33c. Similarly in Ramakrishna Ramnath vs. Presiding Officer, Nagpur (1970 Vol. II LL J 306) the earlier case of 1969-II L. L. J. 728 was distinguished and it was pointed out that the observations in that case cannot be considered dissociated from the setting in which they were made and the court held that the examination of the claim under section 33g (2) may in some cases have to be preceded by an inquiry into the existence of the right and that a mere denial of the fact of retrenchment would not be enough to take the matter out of the jurisdiction of the labour court. In South Arcot F. D. Co. vs. Mohd. Khan (A. I. R. 1963 Madras 192) it was held that section 33g (2) empowers the labour court not only to compute a monetary claim where there is no controversy but would have power" to decide where the claim is disputed. This judgment was affirmed in Municipal Council, Raipur vs. Madhya Pradesh (1970 Vol. II L. L. J. 44 ). In that case it was held that the right, which has been claimed by the various workmen in their applications under section 33-C (2) of the Act, is a right which accrued to them under Section 25 FF of the Act and was an existing right at the time when these applications were made. The Labour Court clearly had jurisdiction to decide whether such a right did not exist when dealing with the application under that provisions. The mere denial of that right by the company could not take away its jurisdiction, so that the order made by the Labour Court was competent. Similarly it is settled that if the money or the benefit claimed by a workman on the basis that the right already exists and the existence of the right is denied, it is competent for the Labour Court in proceedings under S. 33c (2) to denide whether the right does or does not exist vide 1970 LLJ Vol. II, 51. Stress was laid on the distinction that it was not a case where workmen wanted a right to be granted to them by the Labour Court which is a relief that cannot be claimed in proceedings u/s 33c (2) and may be claimed by raising an industrial dispute It is clear from these authorities that under section 33c (2) Labour Court does not lose its jurisdiction merely because the claim is disputed and it has been held that if it is necessary the existence of a right can be determined by the Labour Court. Mr. Vyas however urges that the said proposition do not help in the present case as the application is under sec. 33g (1) of the Act in which only admitted liability can be the subject matter of decision. I cannot agree. In Kays Construction Go. vs. State of U. P. sec. 6h of the U. P Industrial Disputes Act was dealt with which correspond to sec. 33g (1) of the Act In that case the claim put forward was the back wages given under an award and the application was opposed on the ground that as the benefit or money due had not been ascertained the application was not maintainable. The court held that such a case was covered by sub-section (1) of section 6h corresponding to section 33g (1) even though some calculation has to be made to determine the definite amount. In another case reported in 1966 Vol. I, L. L. J. 41 - Sawatram Ramprasad Mills Go vs. Baliram Ukandaji, claim for lay off was put up under section 33g (1 ). The objection of the management that such an application is not maintainable was rejected and it was held that section 33g clearly provides that a dispute for any money due under Chapter VA can be moved before the appropriate Government or its delegate. The court further observed : "it is not essential that ?the claim which can be brought before the; Government or its delegate under Sec. 33c (1) must always be for a predetermined sum. The Government or the labour court may satisfy itself about the exact amount and than take action under that section. In the present case the dates of lay-off are known and each workman will show to the second lab our court that he is qualified to receive compensation for lay off That will be shown from the muster-roll which the employer is required to maintain and it will then be a simple arithmetical calculation which, in our judgment, Sec. 33c permits to be made. If there is any question whether there was lay-off or not, the labour court will decide it. This argument, therefore, has no force " It is relevant to note that in this case the Supreme Court clearly laid down that if there is any question whether there was a lay off or not the labour court which was a delegate of the appropriate Government under section 33c (1) will decide it. The argument of Mr. Vyas therefore that simply because petitioner has stated that it was not liable to pay retrenchment compensation, respondent No. 1 should have stayed its hands and was not entitled to hold whether the respondents Nos. 6 to 31 had a right to get retrenchment compensation is not borne out from these authorities I may note that Mr. Vyas has referred me to B. N. Cotton Mills vs. State of M. P. (A. I. R. 1960 Madhya Pradesh 319), Malout Transport Co. vs. State of Punjab (A. I. R. 1959 Punjab 400) and R. S. E Board vs. Labour Court (A. I. R. 1966 Rajasthan 56) but in view of the settled law laid down by the Supreme Court these authorities can be of no assistance to the petitioner. There seems to be a fallacy in the argument of Mr. Vyas when he says that an application under sec. 33c (1) in the present case is not maintainable because there is no existing right of the respondents Nos. 6 to 31. Now in the present case retrenchment compensation is being claimed under section 25ff which forms a part of Chapter VA. Section 33c (1) clearly says that where money is due to a workman under the provisions of Chapter VA an application can be made to the appropriate Government. The claim of respondent Nos. 6 to 31 is not a claim which they wished to have it first determined Rather their case is that their right has already been determined under the provisions of Chapter VA. To take an illustration as in the case of Kays Construction Co. vs. State of UP. (1963 Vol. II, L. L. J. 429) the claim was made under an award for back wages the same was held to be an existing right. Similarly the claim which is made under Chapter VA of the Act must also be held to be a claim of an existing right and if there is any dispute by challenging that right by the employer the same can be determined by respondent No. 1 because he is to satisfy himself about the said right of the workman. It is also relevant to note that when the application was filed by respondents Nos. 6 to 31 no details were given by the petitioner indicating why the respondents Nos. 6 to 31 were not entitled to claim retrenchment compensation. A reference to the regulations for absorption of the staff taken over from the petitioner Board by respondent No. 2 which has been attached as Annexure-F with the reply shows as per condition 9 that service in the Rajasthan State Electricity Board shall for the purpose of promotion, and seniority be counted from the date of taking over. Moreover by condition 4 the Electricity Board did not undertake any liability for pension, P. F. or other benefit of duties in respect of the service rendered by the employees before the date of taking over by respondent 1. Now proviso to sec. 25ff clearly shows that it will not apply only If the service of the workman has not been interrupted by transfer and that also the new employer makes himself liable in the event of his retrenching the workmen to pay compensation on the basis that the workman's service had been continuous and has not been interrupted by the transfer. A reference to regulation clearly shows that these conditions are not fulfilled in the present case and the proviso to S. 25ff being inapplicable respondents, Nos. 6 to 31's case falls within the ambit of sec. 25ff. In this view the liability of the petitioner to pay compensation to respondents Nos. 6 to 31 was undisputed. It is relevant to note that even in the reply filed by the petitioner Board subsequently it is nowhere stated that the services of the respondents Nos. 6 to 31 will be continuous though it is stated that the said workmen have of their own decided to join the respondent No. 2 Board and are therefore not entitled to retrenchment compensation. But this plea is of no avail in view of the specific provision in the regulation which clearly take the case of the respondents Nos. 6 to 31 out of the purview of proviso and put it squarely in the main part of sec. 25ff. It therefore has to be held that the petitioner was liable to pay retrenchment compensation and that the respondent 1 was under the circumstances of this case competent to determine the point of liability of the petitioner. In fact it was only a question of deciding whether in view of the regulations and clear provision of sec. 25ff the petitioner was liable or not. Such a case cannot be said to be outside the jurisdiction under sec. 33c (1) of the Act. This plea of Mr. Vyas therefore fails. The next objection is that the respondent No. 1 having once decided on 18-12-71 that it had no jurisdiction to adjudicate on the matter in controversy had no competency to review the said decision and reopen the matter and therefore the decision given on 31-1-73 against the petitioner is a nullity. The argument is that there is no specific power of review conferred on respondent No. 1 and hence he could not reopen his earlier order of 18-12-71. The difficulty in the way of accepting this argument from the petitioner is that he never urged this point before respondent No. 1. It is relevant to note that after the matter had been reopened by respondent No. 1 an application was filed by the petitioner raising objections. It is conceded by the counsel for the petitioner that there is no such objection taken before respondent No. 1 namely as to its competency to have reviewed its earlier order dated 18-12-71. The petitioner therefore participated in the proceedings before respondent No. 1 subsequent to 18-12-71 and took his chance of having a decision given in his favour. He never objected to the proceedings being reopened by respondent No. 1. He cannot approbate and reprobate. If his plea was that respondent No. 1 could not have reopened the matter it was incumbent upon him to have taken up the objection at the thresh hold before respondent No. 1. He could not be allowed to participate in the proceedings and then when the decision has gone against him to raise an objection before this Court in the present proceedings that respondent No. 1 was not competent to start the proceedings afresh It is well settled that a party who does not object to the jurisdiction of a tribunal before it cannot be allowed to urge the same subsequently unless there is an inherent lack of jurisdiction. In the present case obviously respondent No. 1 is the competent authority before whom an application had been made and therefore he was validly seized of it. The question whether respondent No. 1 had an authority to review his order of 18th December, 1971 and start proceedings afresh cannot be said to be a matter of inherent lack of jurisdiction. This was a question which specifically had to be raised before respondent No. 1 and the same having not been done the petitioner is estopped from raising this plea at this stage. There is also another fatal objection to the maintainability of the writ petition and that is based on the delay. This writ petition was filed on 15-7-74 and challenges the order of respondent No. 1 dated 31-1-73. The only explanation given in the writ petition as to why the writ petition was being filed late was that the application for copies was made on 23 6-73, the copies were prepared and delivered to the petitioner on 4 7-74 and hence the writ petition could not be filed earlier- Prima facie if the facts were as given in the petition the delay would be properly explained. Unfortunately however the record does not support such an assertion. It is relevant to note that the baid assertion that the petitioner came to know of the order of 31-1-73 only in June, 1973 is not understandable nor acceptable. From the proceedings before respondent No 1 it is undisputed that the representative of the petitioner was present before respondent No. 1 on 26 7-72 and when the matter was adjourned to 16-9-72, an advocate on behalf of the petitioner was present and the next date fixed was 13-10-72. No one appeared on behalf of the petitioner and the matter was adjourned to 24-11-72. On that day again no one appeared on behalf of the petitioner but a telegram was sent for adjournment of the case which was granted by respondent No. 1. On the adjourned date i. e. 31-1-73 the petitioner, Chairman, Municipal Board sent a telegram for adjournment which was of course refused and the order announced on that date. The point to note however is that the chairman of the petitioner Board was aware that 31-1-73 was the date fixed before respondent No. 1. It is not understood nor has it been anywhere given in the petition as to what efforts had been made by the petitioner to find out as to the stage of the proceedings, before respondent No 1. It is difficult to accept that the petitioner Board should not have tried to find out as to what happened on 31-1-73. In any case there can be no justification for the petitioner not to have found out as to what had transpired on 31-1-73 and if by its negligence it remained in ignorance of the proceedings of 31-1-73 it cannot surely take advantage of its own default. The respondents 6 to 13 in their reply have stated that the petitioner was told of the decision of respondent No. 1 in early February, 1973 and also when the Federation of Workers held a meeting demanding the payment. This of course has been denied by the petitioner in its rejoinder. The respondents have also filed on record an application for obtaining the copies given by the petitioner which shows that an advocate on behalf of the petitioner applied on 1-12-73 for a copy of the final order of respondent No. 1 and the same was delivered on 15-12-73 (Annexureb/1 ). Similarly, another application for obtaining copy of some other order was filed on 1-7-74 which was received on behalf of the petitioner on 4-7-74. There is nothing on record to show that the petitioner had applied for a copy in June, 1973 and the same was given only in December, 1973. No doubt Mr Vyas, the Administrator of the Municipal Board had filed an affidavit supporting rejoinder in which it is stated that he had personally filed the copy for application though it is stated that the Labour Commissioner was not present and the application was given to the Clerk in the office It may be noted that though it is stated in the rejoinder that the fact of the application having been given on 23-6-73 had been repeated by the petitioner in its application given to the Collector on 14 11-73 and in the application given to the Labour Commissioner and also a second application filed on 3-7-74, none of these documents have been placed on record and it is not possible therefore to place any reliance on such facts. The supporting affidavit of Mr. Ajmera, the Chairman of the Municipal Board only says that the Executive Officer Mr. Vyas had only made application for copy in the office of the Labour Commissioner and had paid Rs. 20/- to the Advocate and the order for sanction of that amount was passed on 25-6-73. These affidavits still leave a wide margin as to when the application for obtaining a copy was filed and whether the copy which was obtained in December, 1973 was on the application filed in June, 1973. The respondents have filed copies which show that the application for copy by the petitioner was filed on 1-12 73 and it was obtained by the petitioner on 15-12-73 It has not been alleged by the petitioner that the application for the copy filed on 1 12-73 was something different and extra from the application which is alleged to have been filed on 23-6-73. I am saying this because even if the petitioner had applied on 23-6-73 normally the copy would have been made available to it immediately thereafter and there would have been no justification for the petitioner to wait till July, 1974 to file the present writ petition. One of the reasons urged for condoning the delay was that the petitioner had moved the respondent for review of his order d?ted 31-1-73. Prima facie it does seem odd that the petitioner who now is objecting to any power of review being vested in respondent No. 1 should have thought that moving respondent No. 1 in review was proper or adequate step to take, because it must be remembered that the conduct which can excuse delay is one which is permitted by law and if the petitioner chooses a course of conduct which according to its plea now was not permissible in law, the time spent therein cannot be given advantage of to the petitioner. One of the reasons urged is that the order of respondent No. 1 refusing to withdraw the recovery proceedings was passed on 4 7-74. I am afraid that cannot give any help to the petitioner because once an order of 31st January, 1973 had been passed the issue of certificate was only consequential and it was pointless to urge the respondent No. 1 to withdraw the said certificate. The petitioner cannot be alleged to explain his delay by resorting to a step which was plainly untenable. Moreover it is not clear when even this application on which this order of 4 7-74 was passed was made before the respondent No 1 because if as stated by respondents Nos. 6 to 31 it was filed only on that day then the delay from January, 1973 remains up-explained. The counsel for the petitioner had urged that the delay was a matter of discretion and this Court should exercise its discretion in his favour even if it is held that their is some delay. I have already held that respondent No. 1 was competent to adjudicate the matter before it. That apart, the delay of almost a year and a half is such that there is no cause for excusing the same. The employees of the petitioner had undoubtedly been transferred to the respondent Electricity Board this was a matter which needed to be settled quickly. A decision had been given against the petitioner directing it to pay the amount to the respondents Nos. 6 to 31, Evidently the matter was of urgency and the conduct of the petitioner in delaying to pursue the matter can have no excuse moreso when the dealy is of a year and a half. The circumstances of the case are such that even if I had held otherwise that respondent No. 1 was not competent to adjudicate on the matter in controversy I would not have exercised my discretion under the extraordinary jurisdiction of this Court in the present proceedings in favour of the petitioner because of the unexplained laches and dealy. The result is that the writ petition has no merits and is therefore dismissed. The petitioner will pay one set of costs to respondents Nos. 6 to 31. . ;