VYAS, J. - (1.) BY way of filing the present writ petition, the Divisional Personnel Officer, Northern Railway, Bikaner has challenged the order dated 23. 9. 1995 passed by Judge, Labour Court, Bikaner whereby the Judge, Labour Court, Bikaner has passed the order of payment of Rs. 4615. 50 paisa within a period of two months failing which it was ordered that respondent workman will be entitled for interest @ 10% p. a. on the aforesaid amount.
(2.) THE aforesaid order impugned has been passed by Judge, Labour Court, Bikaner upon the application filed by the respondent workman under Section 33-C (2) of the Industrial Dispute Act, 1947 (hereinafter "the Act" only ). According to the brief facts of the case, an application was filed by the respondent No. 1 under Section 33-C (2) of the Act for computation of Rs. 4615. 50 paisa before the Judge, Labour Court, Bikaner and in the claim petition submitted before the Judge, Labour Court, Bikaner it was stated that from 10. 5. 70 to 30. 9. 76, he worked as casual labour and was doing work of 'paniwala' and 'kantewala' and he did work for 120-180 days, therefore, he was entitled for pay-scale of Rs. 70-75 and 196-232 whereas he was paid only Rs. 6/- per day. It was also prayed that he was entitled to the status of temporary employee and pay- scale. The petitioner - non-applicant submitted reply to the application filed by the respondent No. 1 and denied the facts as alleged in the application and it was stated before the Judge, Labour Court that applicant never worked continuously for a period of 240 days, so also no representation was given by the respondent No. 1 nor the card was deposited with the Office of the petitioner and for claim of amount, the applicant is not entitled. It was also stated in the reply that if any claim is due then as per Railways Manual, the applicant-claimant was to file a representation and he was to deposit the original card of his employment in the Office. Thereafter, his case was to be considered in accordance with the Railways Rules. Without any representation by the applicant3 claimant, there is no question of considering his claim. After hearing both the parties, the Judge, Labour Court, Bikaner passed the impugned order dated 23. 9. 1995 whereby it was directed that the respondent No. 1 shall be paid Rs. 4615. 50 paisa which is existing right and if no payment is made within two months, the workman will be entitled for 10% interest on the said amount. Learned counsel for the petitioner vehemently argued that the order dated 23. 9. 1995 is illegal and totally without jurisdiction because the proceedings under Section 33-C (2) of the Act are in the nature of execution proceedings for which a prior adjudication or recognition of the claim of workman by the employer to pay wages at the rate at which he claimed the computation, therefore, when the basis of the claim is disputed the remedy under Section 33-C (2) of the Act is not available to the workman. It is also argued that there is no earlier adjudication or recognition of workman's claim to be paid to him. Thus, the proceedings under Section 33-C (2) of the Act was not maintainable, therefore, the learned Labour Court has failed to consider this aspect of the matter and passed an order while exercising power under Section 33-C (2) of the Act, which is totally illegal. The learned Judge, Labour Court has committed grave error of law while passing such an order upon application filed under Section 33-C (2) of the Act. It is also submitted that the Judge, Labour Court has failed to consider the fact that the claimant has approached the Judge, Labour Court at highly belated stage. The application under Section 33-C (2) of the Act was filed in the year 1991, claiming the benefit for the period of service rendered by the workman in between the year 1970 to 1976. The learned Judge, Labour Court should have dismissed the said application on the ground of delay and latches itself but he has entertained the same which is totally illegal. Learned counsel for the petitioner has invited the attention of this Court towards the judgment of Hon'ble Apex Court reported in (1995) 1 SCC 235 (Municipal Corpn. of Delhi vs. Ganesh Razak), (2001) 1 SCC 73 (State Bank of India vs. Ram Chandra Dubey) and (2005) 8 SCC 58 (State of U. P. and Another vs. Brijpal Singh) and submitted that in the aforesaid judgment it has been held by Hon'ble Supreme Court that the workman can proceed under Section 33-C (2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. Further, it has been held that a proceeding under Section 33-C (2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. The right to the money which is sought to be calculated or 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 the industrial workman and his employer. While citing the aforesaid judgment, it is prayed that the order under challenge may kindly be set aside.
(3.) ON the other hand, learned counsel for the respondent vehemently argued that the Judge, Labour Court has rightly computed the money while treating the said claim as existing right. It is also submitted that in reply to the application filed under Section 33-C (2) of the Act, it is no where stated by the petitioner employer that the workman was not entitled to get pay-scale as claimed by him. Moreover in para - 4 of the reply to the application, it is stated that ************** Meaning thereby, in para-4 of the reply, it is admitted by the petitioner that there is a provision to grant the said relief and for the same the workman is required to file representation, therefore, the Judge, Labour Court while treating the claim of the workman as existing right passed the order, which is permissible to be passed while entertaining application under Section 33-C (2) of the Act. Learned counsel for the workman respondent No. 1 while inviting attention of this Court towards the judgment citied by learned counsel for the petitioner in case of State of U. P. & Another vs. Brijpal Singh (supra) submitted that in this judgment also, the Hon'ble Supreme Court has held that if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. The right to the money which is sought to be calculated or 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 the industrial workman and his employer, therefore, the Judge, Labour Court has rightly passed the impugned order. I have heard learned counsel for the parties and gone through the impugned order as well as the judgments cited by the learned counsel for the parties. ;