P.K.BALASUBRAMANYAN, C.J., AMRESHWAR SAHAY, J. - (1.) Heard the counsel appearing on both sides. The appeal was taken for final disposal though it had appeared today in the Admission List with the consent of both counsel. This appeal is filed by the management. The Second respondent was a workman under the management. He was dismissed from service. An Industrial Dispute was raised and the matter was referred to the Labour Court. The management, during the pendency of the reference, took action against some workmen including the second respondent and dismissed him from service. Since it was during the pendency of the dispute, the management made an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") for approval of the order of dismissal. The approval was not granted by the Labour Court and the application made in that behalf by the Management was rejected. The Management filed C.W.J.C. No. 903 of 1983 (R) in the High Court challenging the refusal of permission. That writ petition was dismissed. The Management filed an appeal L.P.A. No. 21 of 1987(R) challenging the dismissal of the writ petition. That appeal was also dismissed. The result was that the subsequent dismissal of the workman by the Management did not become effective.
(2.) According to the workman, he was not allowed to resume duty notwithstanding the dismissal of the Letters Patent Appeal by the High Court. Therefore, he filed a writ petition before the High Court as C.W.J.C. No. 1930 of 1989 (R) seeking an appropriate, direction in that behalf. That writ petition was dismissed as withdrawn so as to enable the workman to seek relief before the appropriate Forum on the ground that the Management was not allowing him to join duty although its application under Section 33(2)(b) of the Act had been dismissed. The Management, after the dismissal of the writ petition as withdrawn, permitted the workman to join service and he, accordingly, joined the service in February, 1992. According to the Management, the workman was also given the monetary benefits that were due to him on the basis that he continued to be in service. The workman raised a claim that he was not paid what was legitimately due to him and he should have been treated on par with one B.N. Singh who was in fact his junior. The Management did not accede to this request of the workman. In that context, the Workman purported to make an application under Section 33-C(2) of the Act before the Labour Court for recovery of money due from the employer in terms of that Section. The workman claimed that he should have been treated on a par with B.N. Singh and his emoluments including the perquisites and allowances should have been calculated onapar with that ofB.N. Singh. The Management resisted the application by contending that the application under Section 33-C(2) of the Act was not maintainable, that the case of B.N. Singh was entirely different, that whatever was due to the workman has been paid and that he was not entitled to any relief in the proceedings initiated before the Labour Court. The Labour Court did not specifically answer the question whether it had jurisdiction under Section 33-C(2) of the Act to adjudicate on such a dispute but proceeded to order that the workman was entitled to get the arrears of wages, leave wages and incentives at par with B.N. Singh from the date of termination of his services till date taking into consideration the usual upgradation and revision of wages and after deducting the amounts already paid to the workman and that the workman is not entitled to get any allowance such as bonus, leave travel concession, conveyance allowances, medical expenses and house rent. The Management challenged this order of the Labour Court in the writ petition, C.W.J.C. No, 1297 of 2000. It was contended on behalf of the Management that the Labour Court had no jurisdiction under Section 33-C(2) of the Act to pass an order of this nature when the very entitlement of the workman to the relief claimed was an industrial dispute and, in the absence of any adjudication of right by the Industrial Tribunal or by any other competent Court. Other contentions were also raised by the management. The learned single Judge practically upheld the plea of the Management that the application under Section 33-C(2) of the Act was not maintainable before the Labour Court in the circumstances. But, the learned single Judge proceeded to say that the impugned order of the Labour Court could be sustained in terms of Article 14 of the Constitution. This was in the view the learned single Judge took that B. N. Singh was junior to the workman and it was the pendency of the proceeding that deprived the workman of further benefits that might have been due to him. Thus, the writ petition was dismissed. This is what is challenged before us in this appeal.
(3.) Learned counsel for the appellant brought to our notice, the decisions of the Supreme Court in Municipal Corporation of Delhi v. Ganesh Razak and another 1995 (1) SCC 235 : 1995-I-LLJ-395 and State Bank of India v. Ram Chandra Dubey and others 2000 (1) SCC 73 : 2000-II-LLJ-1660. Counsel emphasized, as was emphasized by the Supreme Court, that to grant relief under Section 33-C(2) of the Act, there must be a pre-existing right. Their Lordships of the Supreme Court have said 2000-II-LLJ-1660 at p. 1662: "The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right of benefit, which is considered, just and fair on the other hand is vital. The former falls within the jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not.......";