J.K Mehra, J.— By this order I will be disposing of batch of seven writ petitions being C.W.P No. 186 of 1976, C.W.P No. 1269 of 1976, C.W.P No. 1292 of 1976, C.W.P No. 1293 of 1976, C.W.P No. 1294 of 1976, C.W.P No. 1295 of 1976 and C.W.P No. 1296 of 1976 since common questions are arising in all these writ petitions. In all these writ petitions Delhi Transport Corporation is the petitioner. The said Corporation is a Motor Transport Undertaking within the meaning of Section 2(g) of the Motor Transport Workers Act, 1961 which has been enforced in Delhi w.e.f February 1, 1962. Section 2(g) of the said Act reads as under:—

“2(g). “motor transport undertaking” means a motor transport undertaking engaged in carrying passengers or goods or both by road for hire or reward, and includes a private carrier;”

Under the said Act the term “Motor Transport Worker” is also defined in Section 2 (h) which reads as under:

“2(h). “motor transport worker” means a person who is employed in a motor transport undertaking directly or through an agency, whether for wages or not, to work in a professional capacity on a transport vehicle or to attend to duties in connection with the arrival, departure, loading or unloading of such transport vehicle and includes a driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depot clerk, timekeeper, watchman or attendant, but except in section 8 does not include-

(i) any such person who is employed in a factory as defined in the Factories Act, 1948;

(ii) any such person to whom the provisions of any law for the time being in force regulating the conditions of service of persons employed in shops or commercial establishments apply,”

Section 25 of the said Act provides as under.

“25. Act IV of 1936 to apply to payment of wages to motor transport workers.- The Payment of Wages Act, 1936 as in force for the time being shall apply to motor transport workers engaged in a motor transport undertaking as it applies to wages payable in an industrial establishment as if the said Act had been extended to the payment of wages of such motor transport workers by a notification of the State Government under sub-section (5) of section 1 thereof, and as if a motor transport undertaking were an industrial establishment within the meaning of the said Act.”

Section 37 of the said Act provides as under:

“37. Effect of laws and agreements inconsistent with this Act.- (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act.

PROVIDED that, where under any such award, agreement, contract of service or otherwise, a motor transport worker is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the motor transport worker shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act

(2) Nothing contained in this Act shall be construed as precluding any motor transport worker from entering into an agreement with an employer for granting him rights or privileges in respect of any matter which are more favourable to him than those to which he would be entitled under this Act.”

The petitioner had placed its workmen who are also arrayed as respondent no. 2 in the said petitions under suspension pending certain enquiry and they were being paid during the period of suspension only subsistance allowances as per the regulations applicable to the said workmen. The respondents/workmen on being placed under suspension were paid only subsistance allowance which is alleged to be working out less than 50% of the full wages. It was further pointed out that the Management did not count the period of suspension towards earning of increments. It was alleged by the workers that there was no provision in the standing orders empowering the petitioner to deduct the periods of suspension for the purpose of increment or even to deduct any part of wages for the period of suspension. The Labour Court had inter alia framed the following issues:

“1. Whether this Court has no jurisdiction for reasons pleaded in para 1 of the WS.

2. Whether the application does not lie U/s 33-C(2) of the Act.

3. Whether there is misjoinder of parties in this application and its effect.

4. Whether the applicant is entitled to the money claimed by him.

5. Relief.

6. Whether the WS has not been filed by the Competent person? and its effect.”

The parties proceeded to argue the matter without leading any evidence on issues 1, 2, 3 and 6 treating those as preliminary issues. The Labour Court rejected the contentions of the petitioner relating to the maintainability of application under Section 33-C (2) of the Industrial Disputes Act and jurisdiction of the Labour Court to entertain such a claim inspite of the provisions of the Motor Transport Workers Act, 1961. For the purpose of disposing of these petitions the only two important questions which arise for consideration are:

1. Whether after the enactment of Motor Transport Workers Act, 1961 (Central Act No. 27 of 1961) as amended uptodate, the remedy of motor transport workers within the meaning of that Act for determination of the amount of money due and computation and recovery of wages or benefits which can be computed in terms of money, could only be recovered by moving an application under Section 15 of the Payment of Wages Act, 1936 read with Section 25 of the Motor Transport Workers Act and not by presenting an application to the Labour Court specified, as such, under Section 33-C(2) of the Industrial Disputes Act 1947 (Central Act No. XIV of 1947)?

2. Whether it is. competent for the Labour Court under sub section (2) of Section 33-C of the Industrial Disputes Act to exercise powers and functions and to adjudicate upon any matter specified in Second or Third Schedule to the Industrial Disputes Act ?

2. A question similar to the first question came up for consideration before a single Bench of Andhra Pradesh High Court in Sri Bharti Velu Bus Service v. The P.O, Labour Court, Guntur & Another, reported as 1977 Lab. I.C.320 There applying the maxim “generalis special but non-derogant”, it was held that Section 25 of the Motor Transport Workers Act repealed the Section 33-C(2) of Industrial Disputes Act as far as the Motor Transport Workers are concerned. This view did not find favour with D.K Kapur, J. (as he then was). My attention has also been drawn to the authoritative pronouncement of a Division Bench of this Court in the case of “Delhi Transport Corporation v. D.D Gupta & Anr. LPA No. 124 of 1976” reported as 1984 (2) LLJ 79 equal to 1984 (2) ILR (Delhi) 869 (for short DTC case). In that judgment the conflict between the two earlier Single Bench decisions one rendered by D.K Kapoor, J. (as he then was) referred to hereinabove wherein it was opined that the right of motor transport worker to move application under Section 33-C(2) of the Industrial Disputes Act was not barred and the other view which was quite converse of this was taken by S. Ranganathan, J. (as he then was) where His Lordship came to the conclusion that after promulgation of the Motor Transport Workers Act, 1961 the remedy of “motor transport worker” within the meaning of that Act for computation and recovery of wages or benefits which could be computed in terms of money could only be by way of moving an application under Section 15 of the Payment of Wages Act, 1936 read with Section 25 of the Motor Transport Workers Act, 1961 and not by moving the Labour Court under Section 33-C(2) of the Industrial Disputes Act. In this decision the contention that either of the two remedies or for a were available to the workman was negatived by the said Judge.

3. Section 15(2) of the Payment of Wages Act reads as under:

“15(2). Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under sub-section (1), may apply to such authority for a direction under sub-section (3):

PROVIDED that every such application shall be presented within twelve months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be:

PROVIDED FURTHER that any application may be admitted after the said period of twelve months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.”

4.The term ‘wages’ has also been defined under Payment of Wages Act to mean:—

“all remuneration (whether by way of salary, allowances, or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and includes-

(a) any remuneration payable under any award or settlement between the parties or order of a court;

(b) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period;

(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);

(d) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;

(e) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force;

but does not include -

(1) any bonus (whether under a scheme of profit-sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a court;

(2) the value of any house- accommodation, or of the supply of light, water, medical attendance or other amenity, or of any service excluded from the computation of wages by general or special order of the State Government;

(3) any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon;

(4) any travelling allowance or the value of any travelling concession;

(5) any sum paid to the employed person to defray special expenses entailed on hi by the nature of his employment; or

(6) any gratuity payable on the termination of employment in cases other than those specified in sub-clause (d).”

5. The Labour Court had held that there is nothing in Payment of Wages Act by which the jurisdiction of the Labour Court could be said to have been ousted and also the question as to whether the petitioner management had the right to place the workers under suspension could be determined as it was incidental to the main question that is the computation of the wages payable. The Labour Court had decided by his impugned judgment only the issues no. 1 and 2 while issues nos. 3 and 6 were not pressed by the concerned parties. The question involved in the present case prevailed in a very large number of writ petitions which were taken up for hearing and decided by the Division Bench in the aforesaid LPA—DTC v. D.D Gupta & Another (supra). The Division Bench had taken up for consideration the aforesaid questions which arose in the light of the two conflicting Single Bench judgments and after considering the law on the subject and considering judgments of the Hon'ble Supreme Court expressed their agreement with the decision rendered by S. Ranganathan, J. (as he then was) and disagreed with the view expressed by D.K Kapoor, J. (as he then was). The Division Bench after considering the provisions of the Motor Transport Workers Act, 1961 and those of Industrial Disputes Act and the Payment of Wages Act, 1936 came to the conclusion that the Labour Court did not have the jurisdiction to entertain the applications moved under Section 33-C(2) of the Industrial Disputes Act. The Division Bench had traced the history of legislation wherein it observed that legislature had first enacted Payment of Wages Act, which provided for remedy for employees and large sections of the wage earners whereafter Industrial Disputes Act was enacted, which had carved out a class of employees described as ‘workmen’ as defined under that Act and provided for a remedy thereunder. That was followed by the enactment of the Motor Transport Workers Act, 1961, which took out a further class of ‘workmen’ who were covered by the Industrial Disputes Act and provided for the remedies, inter-alia, of short payment or non payment of wages, as mentioned in Payment of Wages Act, which becomes apparrent on a reading of Section 25 of Motor Transport Workers Act. In the plain language whereof the said Act incorporates the definition and provisions of Payment of Wages Act in it. The Division Bench felt that the question which had arisen for deduction should be examined keeping two aspects in view. First, social legislation enacted for the benefit of proverbial weaker sections of society must be so construed as to fulfill the legislative intent by giving the benefit to the section of the society for whose benefit the legislation is enacted rather than to restrict it. Secondly, the above approach be adopted unless the provisions of the statute clearly spell out a different intention either by express words or by clear-cut implication. After referring Section 37, quoted hereinabove, which lays down that if there is any inconsistency between the provisions of Motor Transport Workers Act incorporating therein the Payment of Wages Act and any other law, then the provisions of Motor Transport Workers Act would prevail. The Court found that while under Section 15 of Payment of Wages Act, there was a limitation provided, no such limitation was provided under Section 33-C(2) and secondly, the claim under Section 15 of Payment of Wages Act could be preferred by the person effected or any legal practitioner or any official of a registered trade union authorised in writing to act on behalf of the person effected or any Inspector appointed under Payment of Wages Act or any person acting with the permission of the authorities appointed under Section 15(1) of the said Act. An application under Section 33-C(2) of Industrial Disputes Act, however, can be moved only by the person effected himself. These two were the inconsistencies in the light whereof the provisions of Motor Transport Workers Act was held by this Court to prevail in the light of Section 37 of the said Act. I am in respectful agreement with the views of the Division Bench of this Court. Therefore, in the light of above discussion, I hold that the Labour Court did not have jurisdiction to entertain application moved by the respondent No. 2 who is covered under the provisions of Motor Transport Workers Act.

6. The next question which arises in the present case is that assuming an application under Section 33C(2) of Industrial Disputes Act was maintainable, whether the validity of suspension could or could not be adjudicated by the Labour Court in computation proceedings whether under Section 33-C(2) of Industrial Disputes Act or under Section 15 of Payment of Wages Act? Although in the light of decision on the first question, it may not be necessary to decide this second question, but keeping in view that such questions are arising very frequently, it would be appropriate to notice the legal position under the said provisions. This was considered by the Division Bench of this Court in the aforesaid judgement. The relevant extract of the said judgement relating to this question is as under:—

“Coming now to the question as to whether the validity of suspension/termination could or could not be enquired into by the Labour Court in computation proceedings whether under Section 33-C(2) of the Industrial Disputes Act or under Section 15 of the Payment of Wages Act, in our view, it will all depend upon the circumstances of a case. No doubt, this question can be gone into specifically in a reference under Section 10 of the Industrial Disputes Act, all the same if the suspension/termination is void ab initio, then the claim of a workman for computation on the assumption that he continues to be in service all through, there being no valid order of suspension/termination, can be preferred and the enquiry into the validity of the suspension/termination would become incidental to the main question of computation.”

7. The scope of Section 33-C(2) had come up for consideration before the Hon'ble Supreme Court on a number of occasions as would appear from the following case law:

Triegi Nath v. Indian Iron & Steel Company Ltd. & Ors. (Reported in 1968 1 LLJ page 1).

It has been held that

“because, under Section 7(1) of the Act, a Labour Court is constituted for the purposes of adjudication of industrial disputes relating to those matters, and it cannot possibly be contended that those disputes raised by individual workman for determination of the amounts due to them under the Award constitute industrial disputes. In fact, this Court, in Central Bank of India Ltd. and others v. P.S Rajagopalan and others (1963-II LLJ 89) clearly held that proceedings under Section 33-C of the Act are in the nature of execution proceedings; and are not meant to include in them proceedings for adjudication of industrial disputes which can only be competently decided by a Labour Court on reference by the Appropriate Government under Section 10 (1) of the Act.”

8. In a catena of decisions, it is ruled that the powers and functions of a Labour Court under Section 33-C(2) are analogous to those of an executing court. In this connection, a reference be also made to Bombay Gas Company Limited and Gopal Bhiva and Ors. 1963 (2) LLJ 608 = AIR 1964 SC 572.

9. On the question as to whether validity of suspension/termination could or could not be enquired into by the Labour Court in computation proceedings under Section 33-C(2) of the Industrial Disputes Act, 1947 or under Section 15 of the Payment of Wages Act would depend on the facts and circumstances of each case. As to what can be adjudicated under Section 33-C(2) of Industrial Disputes Act and what could constitute matters incidental to the computations of benefits has been dealt with at length in the case of Central Bank of India and Ors. and Rajagopalan (P.S) and Ors., reported as 1963 (2) LLJ 89 (SC) and the following extracts bring out the scope of the said provision.

10. The scope of Section 33-C(2) in this behalf has been considered by various decisions of the Supreme Court and the principle laid down appears very clearly to be that the proceedings under Section 33-C(2) are in the nature of execution proceedings. The scope has been summed up in the case of Central Inland Water Transport Corporation Limited, reported as 46 FJR 1, wherein their Lordships of Hon'ble Supreme Court pointed out that in a suit the claim for relief made by the plaintiff against the defendants involves investigation directed to the determination of:—

i) the plaintiff's right to relief;

ii) the corresponding liability of the defendant, including whether the Defendant is, at all, liable or not; and

iii) The extent of defendant's liability, if any, and observed as under:

“But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under S.33C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under S.33C(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that scope. But that is merely ‘incidental’. To call determinations (i) and (ii) ‘incidental’ to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability if worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief.

11. Again the Hon"ble Supreme Court in the case of Punjab Beverages Pvt. Ltd. v. Suresh Chand and Another reported as 1978 2 LLJ 1 laid down as under:

“4. The principal question which arises for consideration in these appeals is as to what is the effect of contravention of S33(2)(b) on an order of dismissal passed by an employer in breach of it. Does it render the order of dismissal void and inoperative so that the aggrieved workman can say that he continues to be in service and is entitled to receive wages from the employer? It is only if an order of dismissal passed in contravention of S.33(2)(b) is null and void that the aggrieved workman would be entitled to maintain an application under S.33C(2) for determination and payment of the amount of wages due to him on the basis that he continues in service despite the order of dismissal. It is now well settled, as a result of several decisions of this Court, that a proceeding under S.33C(2) is a proceeding in the nature of executive proceeding in which the Labour Court circulates the amount of money due to a workman from his employer, or is 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. But 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 beteen the industrial workman and his employer. Vide Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar, (1968) 1 S.C.R 140: A.I.R 1968 S.C 218. It is not competent to the Labour Court exercising jurisdiction under S. 33C(2) to an gate to itself the functions of an Industrial Tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference under S.10 of the Act. Vide State Bank of Bikaner v. R.K Khandelwal, (1968-I LLJ 589). That is why Gajendragadkar, J., pointed out in Central Bank of India v. P.S Rajagopalan, etc., (1963-II LLJ 89): (1964) 3 SCR 140, AIR 1964 SC 743, that “if an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under S.33C(2). His demotion or dimissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown, that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore; the employee continues to be the workman of the employer and is entitled to the benefits due to him under S.33C(2)”. The workman, who has been dismissed, would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under S.10 the Industrial Tribunal may find, on the material placed before it, that the dismissal was unjustified, yet until such adjudication is made, the workman cannot ask the Labour Court in an application under S.33C(2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under S.33C(2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio. hence it becomes necessary to consider whether the contravention of S.33(2) (b) introduces a fatal infirmity in the order of dismissal passed in violation of it so as to render it wholly without force or effect, or despite such contravention, the order of dismissal may still be sustained as valid.”

12. In the case of P.K Singh & Ors. v. Presiding Officer & Ors., reported as AIR 1988 SC 1618, it was observed as under:—

“It is obvious from the facts narrated above, which are not in dispute, that by merely doing the same kind of work which is done by a “B” Grade Fitter, a workman appointed as a “C” Grade Fitter will not be entitled to claim the wages of a “B” Grade Fitter unless he is duly promoted after getting through the prescribed trade tests. Such a workman cannot complain that he is not being paid the salary and allowances due to a “B” Grade Fitter, since he does not possess an existing right to claim it. If, on an adjudication made on the said question on a reference made under Section 10(1) of the Act, it is held that he should be deemed to be a member of the cadre of “B” Grade Fitters, then only he would be able to claim the salary and allowances payable to “B” Grade Fitters. The case before us is analogous to the claim made by a Junior Clerk, who can become a Senior Clerk only on promotion, to the salary attached to the post of Senior Clerk on the ground that both the Junior Clerk and the Senior Clerk are engaged in clerical work.”

13. And finally scope of Section 33-C(2) was again pronounced by the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi v. Ganesh Razak and another reported as 1995 (1) LLJ 395 wherein the Hon'ble Supreme Court was pleased to observe as under:

“12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed, there being no earlier adjudicatio nor recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33C(2) like that of the Executive Court's power to interpret the decree for the purpose of its execution.”

14. Mr. Vohra had cited the judgements in the cases of New Taj Mahal Cafe (Private) Limited v. Labour Court, Hubli & Anr., reported as 1970 (2) LLJ 51 and Payment of Wages Inspector v. Surajmal Mehta & Anr., reported as 1969 (2) SCR 1051.

15. I have carefully perused these judgements and none of these strictly apply to the facts of the present case. In the first case during the pendency of proceedings before Labour Court, suspension was revoked and the Court had to really decide whether on suspension, the workmen did not relinquish their right to wages because of conditions of service applicable. The second case related to claim for retrenchment compensation under Section 25 F. In this question, the Court was concerned with the scope of Section 15(2) of Payment of Wages Act and not Section 33C(2) of Industrial Disputes Act. The Court had laid down as under:—

“…Such an inquiry would necessarily be a prolonged inquiry involving questions of fact and of law. Besides, the failure to pay compensation on the ground of such a plea cannot be said to be either a deduction which is unauthorised under the Act, nor can it fall under the class of delayed wages as envisaged by Ss 4 and 5 of the Act….of any assistance.”

16. From the above discussion, it becomes clear that Labour Court or the Authority under the Payment of Wages Act is competent to return a finding as to what is the rate of suspension wage if such rate is disputed because such a finding would be incidental to the main claim under Section 33C(2). But if there is a challenge to the existing right of the employer to suspend, the same shall have to be appropriately adjudicated upon only in a reference. However, as already observed above, in view of my findings on the first question, I need not go into this question in any further detail.

17. It is contended that the claim of the workman concerned, if filed before the authority under the Payment of Wages Act, would be hopelessly time barred by this time. This, however, cannot change the petition under law. In any event, it is open to the applicant to seek condonation of delay from the authority under the Payment of Wages Act if he can satisfy such authority that he had sufficient cause for not making the application within the prescribed period, the authority may. entertain the application.

18. The result of the above discussion is that the Writ Petition succeeds. Accordingly, Rule Nisi issued is made absolute and the order passed by the Labour Court under Section 33-C(2) of the Industrial Disputes Act is hereby set aside. In the circumstances of the case, there will be no order as to costs.