The Divisional Engin... v. Ikram Ahmed, C/O. Se...

Madhava Reddy, J.:— This matter comes before us on reference by our learned brothers Kuppuswamy, J. and Madhava Rao J., who felt that their decision in Swastik Manufacturers v. Labour Court (1) 1977 LAB. I.C 1725, which was based upon U.P Electricity Supply Company v. R.K Shukla (2) 1969 (2) LAB. L.J 728 : 1970 (1) SCR 507, rendered by a Bench of two judges of the Supreme Court required reconsideration, having regard to the later decision of a larger Bench of the Supreme Court in Bansilal Abirchand Mills Co. Ltd. v. Labour Court, Nagpur (3) 1972 (1) LAB. L.J 231 : 1972 S.C 451, which was unfortunately not cited before them. In Swastik Manufacturers v. Labour Court (1) 1977 LAB. I.C 1725, the Bench held:

It is clear from the terms of the section, that it postualtes that the workman is entitled to receive money or benefit. It is only then he may apply to the Labour Court to decide the question as to the amount of money due or as to the amount at which such benefit should be computed……….the very fact of retrenchment on which the application was based is disputed by the employer. We therefore consider this case falls squarelly within the principle laid down by the Supreme Court in U.P Elec. Supply Company v. R.K Shukla ((1969) 2 SCC 400 : A.I.R 1970 S.C 237 : 1970 Lab. I.C 276) and the question whether in fact there was retrenchment or not cannot be decided by the Labour Court in an application under Section 33C(2). We are satisfied that the denial of retrenchment in this case cannot be said to be made merely with a view to oust the jurisdiction of the Labour Court”

2. The principal question therefore that arises for consideration is as to what is the scope and ambit of section 33-C(2) of the Industrial Disputes Act. The facts giving rise to this Writ Petition briefly stated are:

3. Respondents 1 to 16 who were formerly employees of the Electricity Department of the erstwhile Government of Hyderabad raised an Industrial dispute which was referred for adjudication under the Trade Disputes Order of 1351 Fasli made under Rule 72-A of the Defence of Hyderabad Rules. The Industrial Tribunal, Hyderabad which registered the same as I.D No. 1/49 made an award on 16-2-1950. In exercise of the powers conferred under Rule 72-A(1-D) and proviso (2) thereto of the Defence of Hyderabad Rules, 1348 Fasli, the Government notified the Award under Labour Department's Notification No. 58 dated 31-3-1950. That award Inter alia provided for supply of two free sets of uniforms, a pair of shoes and a hat every year and a rain coat for every three years by Electricity Department to all its outdoor Employees. Respondents 1 to 16 who were later transferred to the State of Andhra Pradesh and subsequently to the Andhra Pradesh State Electricity Board filed a petition M.P 138/71 on the file of the Labour Court, Hyderabad, under section 33-C(2) of the Industrial Disputes Act, 1947 claiming that Meter Readers of Divisional Engineer, MRT Operation City Circle, Andhra Pradesh State Electricity Board, Hyderabad, they are entitled to two sets of uniforms, one pair of shoes and a hat every year and a rain coat once in three years as per the award of the Industrial Court in I.D 1/49 for a period of 9 years from 1962-1963 to 1970-1971. They started that for the earlier period i.e, upto 1961-1962 they were given this benefit. The value of this benefit was stated to be Rs. 14,520/-.

4. The Andhra Pradesh State Electricity Board through its Divisonal Engineer, MRT operations, City Circle which is the Employer of the above respondents resisted this application inter alia on the ground that there is no privity of contract between the Andhra Pradesh State Electricity Board and Respondents 1 to 16 and that the respondents had merged with the other employees of the Andhra Pradesh State Electricity Board and opted to be governed by the Operational Subordinate Service Rules governing them and receiving benefits accrued to the said service. Consequently they are not entitled to any benefit under the said award. They also contended that in view of the provisions of the Trade Disputes Order & Rule 72-A of the Defence of Hyderabad Rules, the sard Award ceased to be in operation after one year of its commencement. The principal contention raised by them was that the right of the respondents having been denied by the Employer, a petition under section 33-C(2) of the Industrial Disputes Act does not lie before a Labour Court. The right claimed has to be established upon reference of the dispute raised to an Industrial Tribunal under section 10 of the Industrial Disputes Act before a petition under section 33-C(2) of the Industrial Disputes Act could be filed.

5. The Labour Court rejected the contentions raised by the Andhra Pradesh State Electricity Board and held that the right of the workmen to receive the benefit was determined under the award dt. 16-2-1950 and their present claim amounts to a mere computation of the benefit in terms of money. The benefit itself having accrued to them unqer the award the Labour Court is empowered to compute the benefits conferred on the workmen ??? the award, the petition is maintainable. The award itself was in force and no question of limitation arises. It accordingly computed the value of the benefit in terms of money and directed the payment of certain amounts to each of the respondents.

6. The Andhra Pradesh State Electricity Board challenges the validity of the award principally on the ground that a petition under Section 33C(2) is not maintainable and that in any event the award dated 16-2-1950 was no longer in force and that the benefits conferred thereunder cannot be computed in terms of money after the workmen entitled to the said benefits have merged with the other employees and opted to be governed by the Operation of Subordinate Service Rules of the Andhra Pradesh State Electricity Board.

7. In view of the contentions raised by the parties, the foremost point that arises for consideration is “Whether the award dated 16-2-1950 made under the Trade Disputes Order was subsisting on the date when the present application under Sec. 33-C(2) was filed?” in this context, we have also to consider whether as Contended by the learned counsel for the petitioner even if the award notified on 31-3-1950 did not cease to be operative, one year therefrom, whether the respondents herein could be deemed to have given up their rights under the award and agreed to be bound by the Operational Subordinate Service Rules framed by the Andhra Pradesh State Electricity Board? Lastly if the above points be held against the petitioner, “Whether a petition under section 33-C(2) of the Industrial Disputes Act was maintainable?”

8. We must first address ourselves to the question “Whether the award notified on 31-3-1950 ceased to be operative one year therefrom and continued to be subsisting even on the date when the application under section 33-C(2) was made?

9. The dispute raised by the respondents was referred under the Trade Disputes Order, 1351 Fasli promulgated in exercise of the powers conferred under Rule 72-A of the Defence of Hyderabad Rules 1848 Fasli. The several claims of the of the workmen were allowed under an Award by the Tribunal constituted under the Trade Disputes Order in I.D No. 1 of 1949. The claim in question forms Demand No. 10 of the dispute referred to the said Tribunal. The demand was for the supply of free uniforms to all the outdoor employees as also supply rain coats, umbrellas and gloves. On receipt of the award, the Government issued Notification No. 58 dated 31-3-1950 in exercise of the powers conferred on it under Rule 72-A(i)(d) and proviso (ii) there to of the Defence of Hyderabad, Rules 1848 Fasil declaring that the Government accepts the award made by the Industrial Court and that it shall be binding on the Electricity Department and its workers for a term of one year from the date of the publication of the Notification in the Jarida (Government Gazette). The Notification contemplated was published in the Gazette on 31-3-1950. As stated in the said notification, the said award was undoubtedly binding on the Electricity Department of the then Government of Hyderabad until 31-3-1951. There is no dispute in this regard. What is to be considered is whether it continued to be binding on the parties thereafter and whether the workmen are entitled to claim the said benefits even after 1-4-1951 and until it is rescinded expressly by either parties as contemplated by sub-section (6) of section 19 of the Industrial Disputes Act.

10. We may notice that under Rule 72-A(1)(c) of the Defence of Hyderabad Rules framed under the Defence of Hyderabad Regulation the President-in-Council may, make provision for referring any trade dispute for conciliation or adjudication in the manner provided in the order by a general or special order applicable generally or to any specified area and to any undertaking or class of undertakings. The Trade Disputes Order promulgated under Rule 72-A empowers the President-in Council to constitute a Board of conciliation and refer any trade dispute or disputes for conciliation. It also makes provision for referring a dispute for adjudication by any Industrial Court. Clause 7(a) and Clause 7(b) of the Trade Disputes Order provides for the Industrial Court abjudicating the matter after notice to the parties concerned. The Trade Disputes Order was amended from time to time. Under Notification No. 17 dated 9th Ardibehist, 1358 fasli Clause 3(A) was introduced which reads as follows:

“A conciliation or adjudication proceedings shall be deemed to have commenced on the date of the order referring the dispute to-a Board of Conciliation or to the industrial Court as the case may be and such proceedings shall be deemed to have concluded when the result of a settlement or adjudication is published by Government in the Jarida.”

11. Under yet another Notification No. 25 of 19-12-1949 Clause 3B was introduced which reads as follows:

“The result of an adjudication published by Government in the Jarida under Clause 3(A) shall come into operation on such date as may be specified by Government and shall remain in operation for such period not exceeding one year as may be fixed by the Government.

Provided that if of its own motion or on the application of any party bound by the result of the adjudication, Government considers that there has been a material change in the circumstances on which the Award was based, it may refer the Award to an Industrial Court for a decision whether or not the Award should by reason of such change cease to be in operation before the expiry of the period so fixed and the period of operation of the Award shall be determined by the decision of the Industrial Court on such reference.”

12. It would be seen from the above that the Trade Disputes or contemplates the Award to be effective for a period of one year from the date of the publication of the Award in the Gazette. The proviso to Clause 3-B of the Trade Disputes Order envisages the operation of the Award to be reduced to a shorter period in the event of material alteration in the circumstances. There is no provision for extending the operation of the Award beyond a period of one year under the Trade Disputes Order. The Industrial Disputes Act was not in force in the then State of Hyderaba which now form part of the State of A.P, when the dispute in question was referred for adjudication or when the Award was made. The Industrial Disputes Act 1947 originally extended only to the then British India. By S. 34 of the Industrial Disputes (Appellate Tribunal) Act, Central Act 48 of 1950 it was extended ‘to the whole of India except the State of Jammu and Kashmir’. Central Act 48 of 1950 came into force on 20-5-1950. There can be no dispute that the then Hyderabad State which was Part-B State was included within the territory of India at least from 26-1-1950. Inasmuch as by Central Act 48 of 1950 the Industrial Disputes Act, 1947 was amended so as to extend to the whole of India except Jammu & Kashmir, it came to be effective in the State of Hyderabad as well from 20-5-1950. Thus although when the Award in question dated 31-3-1950 was made the Industrial Disputes Act, 1957 was not in force in the State of Hyderabad and the Award itself was made under the Trade Disputes Order, while the Award was still in force and binding on the parties the Industrial Disputes Act, 1947 came to be extended to Hyderabad State. The question therefore is whether the extension of the Industrial Disputes Act 1947 to the State of Hyderabad rendered the Award dt. 31-3-1950 made under the Trade Disputes Order effective and binding on the parties even after 31-1-1951. In this context it is necessary to note that under Sec. 19(3) of the Industrial Disputes Act, an Award shall remain in operation for a period of one year and under the provisos to the said sub-sec. the period of operation of the award may be reduced, or extended by the Government for a period not exceeding one year at a time but not exceeding three years in all. However, sub-sec. (6) of Section 19 enacts an overriding provision in the following words:

‘Notwithstanding the expiry of the period of operation under sub-section (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award’.

13. Even though under sub-section (3) of Section 19 an Award made under the Industrial Disputes Act is binding on the parties for a period of one year from the date on which the Award becomes enforceable under Section 17-A of the Act, in view of sub-section 6 of Sec. 19 the award continues to be binding on the parties even after the expiry of one year and until either of the parties gives a notice to the other party intimating its intention to terminate the Award. It is common ground that no notice of termination was given by either of the parties to the Award in question. It is also not disputed that if the Award in Adjudication No. 1 of 1949 made under the Trade Disputes Order is deemed to be an Award under the Industrial Disputes Act or if Sections 19(3) and 19(6) apply to the said Award, since no notice of termination had been given, it would continue to be binding on the parties.

14. Mr. Anantha Babu the learned counsel for the Electricity Board however, contends that an Award made under the Trade Disputes Order could never be deemed to be an Award under the Industrial Disputes Act and consequently Sec. 19(6) of the Industrial Disputes Act is not attracted. On the other hand it is contended by Mr. V. Jagannadha Rao, learned counsel for the workmen, that no such restrictive meaning could be given to the term ‘Award’ occurring in sub-sec. (3) and (6) of section 19 of the Act which were substituted under the Industrial Disputes (Appellate Tribunal) Act, 48 of 1950 and which came into force on 20-5-1950.

15. It would be seen that the amended sub-sec. (3) and sub-sec. (6) of Section 19 therefore came into force on 20-5-1950 i.e, before the expiry of the period of the Award made under the Trade Disputes Order. Section 3 of the Industrial Disputes (Appellate Tribunal) Act 48 of 1950 which effected amendments, among others in section 19 of the Industrial Disputes Act as detailed in the schedule appended to the said Act declares that ‘the provisions of this Act and the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.’ In other words, as a result of section 3 of the Industrial Disputes (Appellate Tribunal) Act, 1950 the provisions of sub-section (3) and sub-sec. (6) of Section 19 of the Industrial Disputes Act shall have effect notwithstanding anything inconsistent therewith contained in the Trade Disputes Order and the Defence of Hyderabad Rules which was the other law for the time being in force in the then State of Hyderabad under which the Award in question was made. Though the Trace Disputes Order was not repealed, by virtue of Act 48 of 1950 simultaneously with the Trade Disputes Order, the Industrial Disputes Act, 1947 also came to be in force in the State of Hyderabad from 20th May 1950. Though the Trade Disputes Order as well as the impugned Award declare that the Award shall be effective only for a period of one year and admittedly it has not been extended by consent of parties or by any order of the Government. If section 3 of the Industrial Disputes (Appellate Tribunal) Act, 1950 applies then certainly ‘the said Award’ shall be effective even thereafter and continues to be effective until one of the parties to the Award terminates the same and gives notice thereof to the other party as contemplated by sub-sec. (6) of Sec. 19. The Parliament in enacting Act 48 of 1950, did certainly have in mind the fact that in the territories to which the Act was being extended there were already certain laws governing industrial disputes. It was also aware of the fact that such laws contained some provisions inconsistent with the provisions of Central Act 48 of 1950 as also some rules & orders or instruments having effect by virtue of such a law. In enacting sec. 3, it certainly intended that the provisions of Central Act 48 of 1950 and the Rules end orders made thereunder ‘shall have effect notwithstanding anything contained in any other law for the time being in force or in any other instrument having effect by virtue of any such law’. The Parliament obviously intended to give over-riding effect to the provisions of Act 48 of 1950 as against the provisions of the Trade Disputes Order or the Award made thereunder. As Central Act 48 of 1950 came into effect in the State of Hyderabad even while the Award in question was subsisting end binding between the parties and as neither under the Trade Disputes Order not under sub-section (3) of Section 19 the period was reduced and nu notice of termination was given by either of the parties under sub-section (6) of Section 19, it continued to be effective and binding between the parties.

16. It is however argued that even if sub-sec. (3) and sub-section (6) of Sec. 19 had come into force in the State of Hyderabad before the expiry of the Award, the question still remained as to whether the Award itself could be treated as one to which Section 19 was applicable so as to be binding on the Parties one year after 31-3-1950. It is, therefore, necessary to examine the ambit of sub-sections 3 and 6 of Section 19 of the Act. So far as sub-section 6 is concerned, undoubtedly it applies to the Awards which are governed by sub-section 3 of Section 19. Sub-section 3 itself declares that an Award shall remain in operation for a period of one year subject to the provisions of Section 19. In employing the word ‘award’ the Parliament has not chosen to restrict its connotation by employing the expression ‘made under this Act or made by a Tribunal constituted under this Act’. Mr. Anantha Babu however would contend that for understanding the scope of the term ‘award’ contained in Section 19(3) one must necessarily look to the definition of the word ‘Award’ contained in section 2(b) of the Industrial Disputes Act and the Industrial Tribunal envisaged by the Industrial Disputes Act. According to him as per the definition of ‘Award’ contained in section 2(b) only an award made by a Labour Court or Industrial Tribunal constituted under Section 7 or Section 7-A of the Industrial Disputes Act is an award to which Section 19(3) would be attracted. The definition or ‘Award’ under section 2(b) reads as follows:

‘Award’ means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10-A’.

17. It would be seen that in defining ‘Award’ the Parliament while declaring that a determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal has not chosen to restrict it to a determination by a Labour Court. Industrial Tribunal or National Industrial Tribunal constituted under Sec. 7, 7-A or 7-B of the Act, in referring to an arbitration award it specifically referred to an arbitration Award made under section 10-A, This deliberate departure in the definition clause in relation to Section 10A discloses the legislative intent to include an award made by any Labour Court, any Industrial Tribunal and any National Industrial Tribunal whether constituted under the provisions of the Industrial Disputes Act or not. It is significant to note that with reference to Labour Court. Industrial Tribunal or National Industrial Tribunal the Parliament has expressly used the word ‘any’ while with reference to arbitration award it has restricted it to the one made under Section 10-A of the Act. If in this context Section 3 of the Industrial Disputes (Appellate Tribunal) Act 48 of 1950 is viewed the intention of the Parliament, to our mind appears to be abundantly clear that it intended to give the benefit of sub-section 3 and sub-section 6 of section 19, which was introduced for the first time in relation to Awards made under the Industrial Disputes Act as well as those made under any other law for the time being in force. The Parliament in enacting sub-section 3 and sub-section 6 of section 19 could not have intended that while the awards made in some of the States should be effective until a notice is given notwithstanding the expiry of one year and that they should stand terminated in other States merely by the efflux of the period of one year. In extending the Industrial Disputes Act to the entire territory of India, excepting Jammu & Kashmir, which State retained a special status, the Parliament evidently intended to make effective all awards until terminated as envisaged by sub-section 6 of section 19 of the Act. We have no reason to doubt that was not the intention when under section 3 it gave the provisions Act 48 of 1950 an over-riding effect over all other Acts and any instrument made thereunder. Having regard to Section 3 of the Industrial Disputes (Appellate Tribunal) Act 48 of 1950 by which the provisions of the Industrial Disputes Act were extended even to the States where there were already similar enactments in force, the awards made under the said enactments which were effective on the date when the Industrial Disputes Act was extended must be deemed to have been included within the ambit of section 19(3).

18. Further the term ‘Award’ defined under section 2(b) of the Act is a definition which, even as laid down therein, has to be read having regard to the subject of context. That definition clause, as most definition clauses invariably do, is preceded by the reservation ‘unless there is anything repugnant in the subject or context’. Even if as contended by Mr. Anantha Babu, learned counsel for the Electricity Board, wherever the word ‘Award’ occurs in the Industrial Disputes Act, the award must be one made by Industrial Tribunal or the Labour Court constituted under the provisions of the Industrial Disputes Act, still having regard to the context in which Section 19(3) occurs and in the context in which the provisions of the entire enactment were extended to States where awards were already made under the enactments then in force in the respective States, the term ‘award’ occuring in Section 19(3) must be understood as taking in awards made under those enactments as well.

19. ‘In Uda Begam v. Imam-Ud-Din (4) 2 All. 74, Chief Justice Stuart observed that ‘a legislative definition or interpretation clause must yield to enactments of a special and precise nature’.

20. Chandra Sekhar v. Thakurji Maharaj (5) AIR 1935 Allahabad 642, which was a matter arising out of a suit for possession of revenue free land and the lower Court had calculated the profits by taking the fasli year and not the ‘year’ as defined in General Clauses Act, the Allahabad High Court held that it was correct and that there was no error apparent on the face of the record. In coming to that conclusion the Court observed that the definitions in section 3 of the General Clauses Act will apply unless there is anything repugnant in the subject or context and in the context of profits in respect of a revenue free land, finding that the patwari's registers are made up for fasli year and not for the calendar year, the court held that the definition of ‘year’ as calendar year contained in the General Clauses Act cannot be applied to the case.

21. In Queen Empress v. Ram Lal (6) XV Allahabad 141), the Registrar acting under section 73 of the Indian Registration Act, 1877 having regard to the fact that the Registrar is described throughout the Indian Registration Act as an officer and his place of dusiness as an office and thought it is necessary to invest him with the powers and privileges of a court when it intended to do so, was held to be not a ‘Court’ within the meaning of section 195 of the Code of Criminal Procedure.

22. A Full Bench of the Calcutta High Court in Kartick Chandra v. Harsha Mukhi Dasi (7) (AIR 1943 Calcutta 345) even in a esse where the interpretation clauses did not contain the words unless there is anything repugnant in the subject or context held:

‘Those qualifying words are always understood. Words must take their colour from the context and need not have the same meaning in every section.’

23. In Md. Manzural Haque v. Bissesswar Banerjee (8) AIR 1943 Calcutta 361, a Bench of the Calcutta High Court observed:

‘Little weight is to be attributed to an omission of the usual qualification ‘unless there is something repugnant in the subject or context’ to a definition in a statute because some such words are to be implied in all statutes where the expressions which are interepted by a definition clause are used in a number of sections with meanings sometimes of a wide and sometimes of an obviously limited character.’

24. In Knights Bridge Estates Trust Limited v. Byrne (9) 1940 Appeal Cases 613, the House of Lords held that the mortgage was a ‘debenture’ within Section 74 of the Companies Act, having regard to Section 380 although the words “unless the context otherwise requires' did not appear in the definition clause. Their Lordships observed.

‘It is incumbent on those who contend that the definition does not apply to Sec. 74 to show with reasonable clearness that the context does in fact require a more limited interpretation of the word ‘debenture’ than Section 380 has assigned to it.”

25. The Supreme Court in N. Subramania Iyer v. Official Receiver, Quilon & Another (10) A.I.R 1958 S.C 1 referring to the definitions in General Clauses Act observed:

‘The General Clauses Act is enacted in order to shorten language used in parliamentary legislation and to avoid repetition of the same words in the course of the same piece of legislation. Such an Act is not meant to give a hide-bound meaning to terms and phrases generally occuring in legislation. That is the reason why the definition section contains words like ‘unless there is anything repugnant in the subject or context’.

26. If that be the true scope of definition in the General Clauses Act and the effect of the words “unless there is anything repugnant in the subject or context” there is no reason why the ??? of the word ‘award’ contained in section 2(b) of the Industrial Disputes Act should be applied so as to restrict the scope of the term ‘award’ contained in section 19(3) of the Act and limit it to awards made under the Industrial Disputes Act. Not only the definition of the term ‘award’ in section 2(b) itself gives scope for including awards made by Labour Courts or Tribunals other than those constituted under the Industrial Disputes Act within the ambit of sub-sections (3) and (6) of section 19, but also the context in which the Industrial Disputes Act was extended to certain States where awards were already made under the corresponding enactments then in force, requires the term ‘award’ contained in section 19(3) to be interpreted as including awards made under the other enactments as well.

27. It is however urged on behalf of the petitioners that the provisions of the Industrial Disputes Act which is a Central Act cannot override the provisions of the Trade Disputes Order which is a State Act even if both cover the same field. Although it is contended for the respondents that these two enactments do not cover the same field, we have no hesitation in rejecting the said contention. Though the Trade Disputes Orders may not cover the entire field covered by the Industrial Disputes Act. It is nonethless a legislation intended for decision of disputes between workmen and employers by reference to conciliation Boards or Industrial Tribunals. Such a provision is made under the Trade Disputes Order in exercise of the power vested under Rule 72-A of the Defence of Hyderabad Rules. The Trade Disputes Order provides for reference of disputes to conciliation Boards in the first instance and on the failure of conciliation, reference of the dispute for adjudication by an Industrial Court. The award made by the Industrial Court is made binding on the parties on it being accepted and notified by the Government. Such an award when notified is to be operative for a period of one year or for such lesser period as the Government may deem it advisable to reduce. Similar provision is made for reference of disputes to the Conciliation Officer and the Industrial Tribunal under Sections 7 and 10 of the Industrial Disputes Act. The Award that an Industrial Tribunal ultimately make under Section 15 is required to be notified by the Government under Section 16. Having regard to the provisions of Section 19, on such notification the said award would be binding on the parties for a period of one year unless the period is reduced or enhanced as laid down therein by the Government. Of course there are other provisions also in the Industrial Disputes Act for which a corresponding provision is not to be found in the Trade Disputes Order. But so far as it goes, the Trade Disputes Order and the Industrial Disputes Act covers the same subject-matter and provides similar machinery for adjudication of disputes and makes the award made by such Tribunals binding on the workmen and employers. Undoubtedly these two pieces of legislation cover the same field. The Trade Disputes Order is a law in force made by legislature of a State operating within the State of Hyderabad, a Part-B State under the Constitution of India which came to be in force even in relation to Hyderabad State on 26th January, 1950. On 20th May, 1950 the Industrial Disputes Act which is Central enactment also came to be enforced in the State of Hyderabad. So much so that from 20th May, 1950 onwards the Trade Disputes Order as well as the Industrial Disputes Act covering the same field were simultaneously in operation in the State of Hyderabad. Now it would be seen that the Industrial Dispute is a matter which is covered by the concurrent list. It falls under Item 24 of List 3 Concurrent list of the 7th Schedule to the Constitution of India. Art. 254 of the Constitution Hays down as to which law would prevail if there is an inconsistency between the law made by Parliament and the Law made by the Legislature of a State. As the provision stood in 1950, Art. 254 reads as follows:

“254(1). If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the concurrent list, then subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may, be the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State specified in Part A or Part B of the First Schedule with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State”.

28. Mr. Jagannadha Rao, learned counsel for the respondent contends that since the Parliament has enacted the Industrial Disputes Act and has extended the same to Hyderabad State under Article 254(1) the Industrial Disputes Act which is the law made by the Parliament shall prevail over the Trade Disputes Order which is the law made by the Legislature and the Trade Disputes Order to the extent of repugnancy shall be void. In any event is contended that the law made by the Legislature of the State shall be deemed to have been impliedly repealed. On the other hand it is contended by Mr. Anantha Babu, the learned counsel for the Electricity Board that Art. 254(1) has no application to the present situation as the Trade Disputes Order is not “a law made by the Legislature of the State at all.” It is a law made by the esrtwhile State of Hyderabad which was not a ‘State’ as envisaged under the Constitution of India, 1950. Though Art. 254(2) may not apply in terms to the present situation, as laid down by the Supreme Court in Saverbhai Amaidas v. State Of Bombay (11) 1955 SCR (1) 799, on a question whether under Art. 254(1) an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together then the earlier is repealed by the later enactment, will be equally applicable to a question under Art. 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State Law”. In that view of the matter, the Supreme Court held:

“That section 2 of Bombay Act No. XXXVI of 1947 cannot: prevail as against section 7 of the Essential Supplies (Temporary Powers) Act No. XXIV of 1946 as amended by Act No. ??? of 1950.”

29. The Supreme Court further observed that—

“Article 254(2) of the Constitution is, in substance, a reproduction of section 107(2) of the Government of India Act, 1935 the concluding portion whereof is incorporated in a proviso with further additions …………… The principle emodied therein is that when there is a legislation covering the same ground both by the Centre and by the State, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.”

30. The principle underlying that decision would apply to the present situation also. Though there is no repeal express or implied; the provisions of the Industrial Disputes Act as amended and enforced in the State of Hyderabad under Industrial Disputes (Appellate Tribunal) Act 48 of 1950 shall prevail, more especially when section 3 whereof declares that the provisions of this Act (Industrial Disputes (Appellate Tribunal) Act 48 of 1950) and the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.

31. We must however, add that Art. 254(2) would not apply in the present context; it applies only when the State Act is an Act made by a Legislature of a State in Some Singh v. State of Pepsu (12) (AIR 1954 SC 311, in the context of Clause 3 of Art. 286 of Constitution of India which declares that “No law made by the Legislature of a State imposing, or authorising the imposition of a tax on the sale or purchase of any such, goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent” considered whether the Pepsu General Sales Tax Ordinance (33 of 2006) and held that Ordinance “which is an existing law has been continued by Art. 372…———Persual of that clause will at once indicate that, that clause contemplates a post-constitution law, for, it must be a law made by a Legislature of a State, which must refer of the Legislature of a State created by the Constitution. Further and what is more important, it contemplates a law which can be but has not been reserved for the consideration of the President and has not received his assent. This provisio clearly points to post Constitution law, for there can be no question of an existing law continued by Art. 372 being reserved for the consideration of the President, for receiving his assent”. This clearly postulates a post-Constitution law Thus it would appear that wherever the Constitution employed the words “law made by the Legislature of a State” and especially when it referred to a law which was reserved for the assent of the President it necessarily intended to take in only such laws as are made by a Legislature of a State subsequent to the commencement of the Constitution and not a pre-Constitution law. All pre-Constitution laws were continued in force as existing law “under Art. 372 and are not laws made by Legislature of a State.

32. In P.N Kaul v. State of Jammu & Kashmir (13) 1959 (II) S.C Appeals 65, the Supreme Court observed:

“There is no scope for applying the provisions of Cl. (2) of Art. 254 which delas with cases where the subsequent law has been reserved for the consideration and assent of the President: but this aspect of the matter itself shows that the whole article would in substance be inapplicable to the State Clause (2) of Art. 254, which is its integral and important part, postulates that the Legislature of the State, in enacting a law on the relevant matter may reserve if for consideration of the President and his assent and thereby save the consequences of Cl. (1) and Cl. (2) was clearly inapplicable to the State.”

33. Thus it is clear from the pronouncements of the Supreme Court that for the application of Art. 254 the enactment in question must by made by “Legislature of a State” i.e, a State as envisaged by the Constitution of India with effect from 26-1-1950. Any pre-Constitution enactment is not within its purview. Consequently the question of applying Art. 254(1) or (2) to the present situation and proceeding to consider the further question whether there is any repugnancy between the provisions of the Trade Disputes Order and the provisions of the Industrial Disputes Act and if so which Act would prevail, does not arise. In this view of the matter we deem it unnecessary to consider as what is the effect of sections 6 and 8 of the General Clauses Act and also whether the award made under the Trade Disputes Order is an instrument within the meaning of Sec. 8 of the General Clauses Act.

34. In the result, we hold that the award notified under the Trade Disputes Order on 31-3-1950 was effective and binding on the parties on 20th May, 1950 when the Industrial Disputes Act was extended to the State of Hyderabad under the Industrial Disputes (Appellate Tribunal) Act (48 of 1950) which contained Secs. 19(3) and 19(6). The Industrial Disputes (Appellate Tribunal) Act, 1950 gives an overriding effect to the provisions of the said enactment notwithstanding anything contained to the contrary in any other enactment. A combined reading of sub-sections (3) and (6) of Sec. 19 continued the said award until erminated by notice of either party. None of the parties have admittedly given notice of their intention to terminate the Award. Hence the award notified on 31-3-1950 continued to be binding on the parties.

35. The next point that remains to be considered is whether the respondents herein had given up their rights under the Award and agreed to be governed by the Operational Subordinate Service Rules framed by the Andhra Pradesh State Electricity Board. The respondents were the employees of the Electricity Department of the erstwhile Government of Hyderabad. They were allotted to the State of Andhra Pradesh under the States Reorganisation Act, 1956 and continued to be the employees of the Govt. of Andhra Pradesh from 1-11-1956. After the Andhra Pradesh State Electricity Board was formed in the year 1959, they were working on deputation from the Government with the said Board. Sometime in the year, 1963, the respondents were absorbed in the service of the Andhra Pradesh State Electricity Board. It was stated by the Board that the Andhra Pradesh State Electricity Board had framed Operation Subordinate Service Rules for the cadre of employees to which the respondents herein belong and that the respondents ware given the option to be governed by the said Rules. It is common ground that the option forms alleged to have been signed by the respondents are not available. The respondents deny that they had ever signed any such option forms. As the matter stands, we have therefore to proceed on the footing that the respondents have not opted to be governed by the Operation Subordinate Service Rules framed by the Electricity Board. That apart, there is nothing in the said rules which takes away any rights conferred on the workmen under and Award. Further the fact remains that even after the formation of the Board during all these years upto 1962-1963, the respondent employees were given the benefits conferred on them under the Award, I.D 1 of 1949. Only because they were not given these benefits from 1962-1963 onwards upto 1973-1974, they have filed the present application under section 33-C(2) of the Act. That apart, we find that the benefits that are conferred under the Award are amenities provided for the workmen in view of the special nature of the duties required to be ??? by them. It is a condition of service and is not expressly taken away by any subsequent agreement, award or a statute. Any revision of pay scales from time to time was not peculiar to the respondents cadre of service or to the ??? alone, but applied uniformly to other employees similarly placed. Such revision to pay scales of itself cannot take away the benefits conferred on them under the Award. In our view, it is no answer to the petitioner's claim based on the award to say that other employees similarly placed are not given these benefits. Whether other employees similarly placed are entitled to similar benefits or not is a matter with which we are not concerned in the writ petition. But the fact that the other employees are not receiving these benefits although discharging the same duties and receiving the same emoluments as the respondents in other respects, does not disentitle them to claim computation of their benefit in terms of money to which they are entitled under the award. The Award being operative for the reason that none of the parties have terminated the same by giving a notice as provided under Sec. 19(6) of the Industrial Disputes Act, the Award continues to govern the petitioner and the respondents. Consequently, they would be entitled to enforce their right. It constitutes an existing right conferred by the Award.

36. Against this back-ground we have to consider the principal contention that the Labour Court had no jurisdiction to entertain a petition under Sec. 33-C(2) of the Industrial Disputes Act and that the same is not maintainable.

37. It is the contention of the petitioner that the Andhra Pradesh State Electricity Board which is the employer of the workmen in question does not admit its liability to pay any amount to the workmen under the Award dated 31-3-1950 firstly for the reason that the award ceased to be in existence one year after it came into force and secondly because the respondents opted to be merged with the Andhra Pradesh Operational Subordinate Service of the State Electricity Board and agreed to be governed by the said rules. The very right of the workmen to receive the benefits is thus disputed and as such a petition under Section 33C(2) of the Industrial Disputes Act is not maintainable.

38. In Swastik Manufacturers Ltd., North, Secunderabad v. Labour Court, (1) 1977 LAB. I.C 1725, a Bench of this Court purporting to follow the decision of the Supreme Court in U.P Electric Supply Co. v. R.K Shukla (2) 1969 (2) LAB IC 728 : 1970 (1) SCR 507 at 513 & 517 = 1970 S.C 237 : 1970 LAB. I.C 276, observed:

“It is clear from the terms of the section, that it postulates that the workman is entitled to receive money or benefit. It is only then he may apply to the Labour Court, to decide the question as to the amount at which such benefit should be computed”.

39. And dealing with the case before it, in which the employees claimed that they were retrenched from service and that they were entitled to refrenchment compensation, leave salary, bonus, etc. and filed a petition under Sec. 33-C(2) before a Labour Court for computing the said monthly benefit, held:

“………the very fact of retrenchment on which the application was based is disputed by the employer. We therefore consider this case falls squarely within the principle laid down by the Supreme Court in U.P Electric Supply Co. v. R.K Shukla (2) supra and the question whether in fact there was retrenchment or not cannot be decided by the Labour Court in an application under Sec. 33-C(2). We are satisfied that the denial of retrenchment in this case cannot be said to be made merely with a view to oust the jurisdiction of the Labour Court…….This would indicate that the question whether the employees were retrenched or they left the services of their own accord is not a matter free from doubt and the contention was not raised merely with a view to get over the jurisdiction of the Labour Court. Such a matter would be one which would more appropriately be decided when raised as a dispute by the Industrial Tribunal”.

40. The Bench distinguished the decision in Venkatrama Naidu v. Presiding Officer (14) 1975 Lab. I.C 126, stating that in that case the employer did not dispute that the workmen were entitled to compensation, it only contended that the compensation should be calculated on a particular basis different from the basis on which the workmen claimed. It also pointed out the distinction between the case before it and the case considered by Supreme Court in Arcot Electricity Distribution v. Mohammed Khan (15) 1970 (2) LAB. L.J 44 (S.C) which held that a petition under Sec. 33-C(2); was maintainable by pointing out that the right claimed by the employees was an existing right and the mere denial of the right could not take away the jurisdiction of the Labour Court. The Bench ultimately proceeded to field that the facts of that case were more akin to the facts in U.P Electric Supply Co. v. R.K Shukla (2) supra, than the facts in the case of Sahu Minerals Limited v. Presiding Officer (16) 1975 LAB. I.C, 1224 and South Arcot Electricity Distribution v. Mohd. Khan (15) 1970 (2) Lab. L.J 44 (SC) Accordingly it came to the conclusion that a petition under S. 33-C(2) was not maintainable. In reaching that conclusion the Bench purported to follow the principle laid down by the Supreme Court in Central Bank of India Limited v. Rajagopalan (17) AIR 1964 S.C 743, wherein the Supreme Court reiterated that “the workman cannot put forward a claim in respect of a matter which is not based on an existing right and which cannot be appropriately be the subject matter of an industrial dispute only requiring reference under S. 10 of the Act.” In the result, as the workmen claimed that they were retrenched from service by an order dated 17-1-75 and the employer contended that they were not retrenched but that they had left the service of their own accord, the Bench was of the view that there was a dispute as to the right of the workmen to claim retrenchment compensation, leave salery etc. which could be paid only upon a finding that there was retrenchment. The Bench held that it was a case where there was no existing right and that had to be established by an adjudication after reference of the dispute to an Industrial Tribunal.

41. We have therefore to consider as to when a petition under section 33-C(2) is maintainable and mote specifically is the jurisdiction of the Labour Court taken away merely because the right of the workman is denied and further, if the petition is maintainable, what are the matters that can be gone into in that petition.

42. In Central Bank of India v. Rajagopalan (17) AIR 1964 S.C 743, the claim of the workman under section 33-C(2) before a Labour Court to the payment of Rs. 10/- per mensem as special allowance for operating adding machine as provided for in para 164(b)(i) of Sastry Award was held to be maintainable and the preliminary objection of the employer was over ruled. The Court further held.

“The claim under section 33-C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-section (2)—

When sub-section (2) of section 33-C refers to any workman entitled to receive from the employer any benefit there specified it does not mean that he must be a workman whose right to receive the said benefit is not disputed by the employer. Section 33(C)(2) takes within its purview cases of workmen who claimed that the benefit to ‘which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers… … …

As Maxwell has observed “where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution”.

43. It would be seen from this Judgment of the Supreme Court while the right itself should be an existing right for enabling a ‘workman’ to maintain a petition under Sec. 33-C(2) without which such a petition would not be maintainable, it is not necessary that this existing right should have been admitted by the employer. Even if the employee disputes the existing right, it can be enquired into and decided in a petition under section 33(2) of the Industrial Disputes Act, as a question incidental to the computation of the money or the value of the benefit in terms of money and grant the same under Sec. 33(2) of the Industrial Disputes Act. The denial of the existing right of the workman to receive money or the benefit does not oust the jurisdiction of the Labour Court to entertain a petition under Sec. 33-C(2) of the Industrial Disputes Act and require the reference of the dispute raised for adjudication under section 10 of the Act.

44. In East India Coal Co. v. Rameshwar (18) AIR 1963 S.C 218 Shelat, J. speaking for the court referred to the earlier decisions of the Shelat, J. speaking for the court referred to the earlier decisions of the 1963 S.C 48, Central Bank of India v. Rajagopalan (17) AIR 1964 S.C 743 and Bombay Gas Co. v. Gopal Bhiva (20) AIR 1964 S.C 752, stated that the following eight principles are deducible from these three decisions;

(1) The Legislative history indicates that the legislature after providing broadly for the investigation and settlement of disputes on the basis of collective bargaining, recognised the need of individual workmen of a speedy remedy to enforce their existing individual rights and therefore inserted Sec. 33-A in 1950 and Sec. 33C in 1956. These two sections illustrate cases in which individual workmen can enforce the ??? without having to take recourse to Sec. 10(1) and without having to depend on their union to espouse their case.

(2) In view of this history two considerations are relevant while construing the scope of Sec. 33-C. Where industrial disputes arise between workmen acting collectively and their employers such disputes must be adjudicated upon in the manner prescribed by the Act, as for instance under Sec. 19(1). But having regard to the legislative policy to provide a speedy remedy to individual workman for enforcing their existing rights, it would not be reasonable to exclude their existing rights sought to be implemented by individual workman. Therefore though in determining the scope of Sec. 33-C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall, for instance under Sec. 10(1), cannot be brought under Sec. 33-C.

(3) Sec. 33-C which is in terms similar to those in Sec. 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950 is a provision in the nature of an executing provision:

(4) Sec. 33-C(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 ascertained and therefore there is no dispute about its computation. But Sub-sec. (2) applies both to non-monetary as well as monetary benefits. In the case of monetary benefit it applies where such benefit though due is not calculated and there is a dispute about its calculation:

(5) Sec. 33-C(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money even though the right to the benefit on which their claim is based is disputed by their employers. It is open to the Labour Court to interpret the award or settlement on which the workmen's right rests.

(6) The fact that the words of limitation used in Sec. 20(2) of the Industrial Disputes (Appellate Tribunal) Act, 1950 are omitted in Sec. 33C(2) shows that the scope of Sec. 33-C(2) is wider than that of Sec. 33-C(1). Therefore, whereas Sub-sec. (1) is confined to claims arising under an award or settlement or Chapter VA, claims which can be entertained under Sub-sec. (2) are not so confined to those under an Award, settlement or Chapter VA.

(7) Though the court did not indicate which cases other than those under sub-section (1) would fall under sub-section (2), it pointed out illustrative cases which would not fall under sub-section (2), viz., cases which would appropriately be adjudicated under section 10(1) or claims which have already been the subject matter of settlement to which sections 18 and 19 would apply.

(8) Since proceedings under section 33-C(2) are analogous to execution proceedings and the Labour court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an executing court, the Labour Court like the executing court in execution proceedings governed by the Code of Civil Procedure, is competent under section 33C(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without jurisdiction”.

and held:

“It is clear that the right 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 an industrial workman and his employer.”

45. In State Bank of Bikaneer & Jaipur v. Khandewal (21) 1968 (1) Lab. L.J 589, referring to the above decision of the Supreme Court, Bhargava, J., speaking for the Bench of three Judges of the Supreme Court reiterated that “these decisions make it clear that a workman cannot put forward a claim in application under section 33-C(2) of the Industrial Disputes Act in respect of a matter which is not based on an existing right and which can be appropriately the subject-matter of an industrial dispute only requiring reference under section 10 of the Act”. In that case the question whether the workmen's reversion was wrongful or rightful or whether it should be set aside was held to be not a matter within the jurisdiction of a Labour Court dealing with an application under Section-33-C(2) of the Industrial Disputes Act. The Supreme Court held:

“The vacation of such an order can only be sought by raising an Industrial dispute and having it decided in accordance with the other provisions of the Act. A labour court, acting under section 33-C(2) has to decide the application on the basis that in fact, the respondent was during the relevent period doing routine clerical work and was not employed on supervisory duties.”

46. In effect, the Supreme Court held that the order of reversion cannot be overlooked by the Labour Court. The workman must get that order se aside by raising an Industrial Dispute and obtaining an adjudication by reference under section 10 of the Act before claiming any compensation under section 33-C(2) of the Industrial Disputes Act This position was discussed at length by the Supreme Court in Punjab Beverages v. Suresh Chand (22) (1978) 2 SCC 144 : AIR 1978 S.C 995, wherein the entire case law was reviewed with reference to a workman who was dismissed by an employer in contravention of section 33(2)(b) and held:

“The contravention of S. 33 does not render the order of discharge or dismissal void and inoperative. The only remedy available to the workman for challenging the order of discharge or dismissal that provided under S. 33-A, apart of course from the remedy under Sec. 10 and he cannot maintain an application under Sec. 33C(2) for determination and payment of wages on the basis that he continues to be in service. The workman can proceed under S. 33C(2) only after the Tribunal has adjudicated, on a complaint under Sec. 33-A or on a reference under Sec. 10, that the order of discharge or dismissal passed by the employer was not justified and has set aside that order and reinstated the workman.”

47. In South Arcot Electricity Distribution v. Mohamed Khan (15) 1970 (2) LAB LJ 44 (SC) dealing with the right of the employees to claim retrenchment compensation under S. 33-C(2) from the company in a case where that right was denied by the employer held that the workmen were entitled to claim retrenchment compensation in accordance with the provisions of S. 25F of the Act because of the right accruing to them under Sec. 25FF of the Act. The Supreme Court further held:

“the right which has been claimed by the various workmen in their application under S. 33C(2) of the Act is a right which accrued to them under Sec. 25-F 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 or did not exist when dealing with the application under that provision. 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.”

48. In Ramakrishna Ramnath v. Presiding Officer, Labour Court, Nagpur (23) 21 Indian Factories & Labour Reports 159 : S.C Labour Judgments Vol. VII p. 656 : (1969) 2 SCC 400 : AIR 1970, S.C 237, Mitter J., speaking for the Bench considered the question “Whether a petition under section 33-C(2) by a workman who claimed a sum of Rs. 3,034-80 on account of retrenchment and one month's pay in lieu of notice was tenable?” When the respondent employer contended that the closure was on account of unvoidable circumstances beyond the control of the employer and that the closure did not result in the retrenchment of the applicant. After referring to the earlier cases of that Court, he held:

“……….that the jurisdiction of a Labour Court is not confine ??? to disputes specified in the Second Schedule but the said Court has also to perform other functions as may be assigned to it. If there is a closure of a business within the meaning of Section 25-FFF a workman who has been in continuous service for not less-than one year in that undertaking immediately before the closure becomes entitled to notice and compensation in accordance with the provisions of Section 25-F as if he or she had been retrenched. Section 25-F specifies the measure of compensation. Under section 33-C(2) a Labour Court specified in that behalf by the-appropriate Govt. has therefore to determine the benefit due to a worker which is capable of being computed in term of money if Section 25-FFF is applicable to the facts of the case……the examination of the claim under section 33-C(2) may in some cases have to be preceded by an enquiry into the existence of the right. A mere denial of the fact of retrenchment would not be enough to take the matter out of the jurisdiction of the Labour Court”.

49. In C.I.W.T Corporation v. Workmen (24) (1974) 4 SCC 696 : AIR 1974 S.C 1604, where a claim against a Transferee Corporation for retrenchment benefits under Section 25-FF under Industrial Disputes Act was made under section 33-C(2) the Supreme Court held;

“The former employees of the company who are not absorbed by the corporation could hardly make out a claim against the transferee-corporation either for compensation on termination of their service following the transferer or for re-employment. Only on a detailed investigation would it be possible to determine whether the workmen had any right to a benefit and if so, the corporation was liable to satisfy the same. The other question which would be necessary to decide was whether the corporation was a successor of the defunct company. Such an investigation would clearly be quite outside the speedy individual remedy contemplated by section 33-C(2). The question was not one which the Labour Court could be expected to deal with in a proceeding under section 33-C(2) the principal business whereunder is just computation of a benefit demonstrably existing, in short the problems raised were appropriate for determination in an Industrial Dispute on a reference under section 10 of the Act and could not be regarded as merely ‘incidental’ to the computation under section 33-C(2)”.

50. In this deepen, proceedings under section 33-C(2) were stated to be—

“——generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit in view of its being previously adjudged, or, otherwise duly provided for. In Chief Mining Engineer East India Coal Company Ltd. v. Rameswar (1968) I SCR 140 : AIR 1968 SC 218 it was reiterated that proceedings under section 33-C(2) are analgous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the position of an executing court”.

51. Though the claim in this case was held to be not entertainable under Sec. 33-C(2) of the Industrial Disputes Act by a Labour Court, the Supreme Court did not differ from the principle laid down by it in the earlier cases that the claim for money or compensation of the benefit in terms of money based on existing light could always be enquired into under Sse. 33-C(2) of the Industrial Disputes Act and a petition was maintainable thereof. In fact referring to the decision in East India Coal Co. v. Rameshwar (18) 1968 S.C 218 : 1968 (1) SCR 140, the Supreme Court stated:

“It was also reiterated that the right 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 an Industrial workmen and his employer”.

52. In S.M & P. Ltd. v. Presiding Officer, Labour Court (16) AIR 1975 S.C 1975 : 1975 (2) Lab. I.C 1224, Alagiriawami, J., speaking for the court held:

“It was competent to the Labour Court to decide whether the case before if wan a case of retrenchment compensation or the proviso to sub-section (1) of Section 25-FFF was attracted on closure of the establishment. The question even according to the employer falls under Section 25-FFF and therefore in deciding that question the Labour Court has necessarily to decide whether the proviso has been satisfied.”

53. Referring to item 10 of the Third Schedule to the Act which read “Refrenchment of workmen and closure of establishment”, the Court held:

“It does not say that all questions arising out of retrenchment of workmen and closure of establishments have to be decided by Industrial Tribunal, Logically if the contention is to be accepted, even if the question of retrenchment is not disputed the Labour Court will not be competent to decide the question of compensation payable in a case of retrenchment because it raises a question of jurisdiction. This entry should therefore be held to refer to cases where the right to retrench workers or to close an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal. In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenched workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on the basis that the so called closure was not clusure at all. In the present case the workmen do not ask for reinstatement. They accept the termination of their services and ask for compensation. The only dispute is about the compensation whether it is to be paid under section 25F or 25FFF. Item 10 of Third Schedule will not cover such a case”.

54. It would be clear from this that if an existing right is denied or disputed, the Labour Court may yet entertain a petition under section 33C(2) and determine the compensation, if any payable and find that there is an existing right. It cannot, however, by an order under section 33-C(2) create a new right. It can only enquire and find under section 33C(2) whether a right is already existing entitling the workman to claim monetary benefit.

55. In S.B Bansilal Abirchand Mills Co. v. Labour, Court, Nagpur (3) 1972 S.C 451 : 1972 (1) Lab. L.J 231, which was not brought to the notice of the Divn. Bench of this court which decided Swastik Manufacturers v. Labour Court (1) 1977 Lab. I.C 1725, the Supreme Court, was considering the question “whether an application under section 33-C(2) of the Industrial Disputes Act could be filed before a Labour Court, where the claim was for compensation for lay off as provided under section 25-C of the Industrial Disputes Act was made and it was denied by the Employer? The Labour Court found that there was lay-off and declared the employees entitled to compensation. The jurisdiction of the Labour Court to entertain such a petition was unsuccessfully challenged before the High Court of Bombay and on appeal the Supreme Court affirming that judgment held:

“The claim to compensation of every workman who is laid off is one which rises under the statute itself and section 25-C provides for a benefit to the workman which is capable of being computed in terms of money under section 33-C(2) of the Act. The scheme of the Act being to enable a workman to approach a Labour Court for computation of the compensation claimed by him in terms of section 25-C of the Act, he is not concerned to see whether other co-workers will or will not adopt the same course. The fact that a number of workers make claims of identical nature i.e, to compensation for lay off, arising out of the same set of facts and circumstances cannot make any difference to the individual workman who prefers the claim. The mere fact that a large number of persons makes a claim of the same nature against the employer does not change the nature of the dispute so as to take it out of the plea of section 7 of the Act and render the dispute one which can only be dealt with by an industrial. Tribunal to which reference can be made by the appropriate Government.”

56. Repelling the contention that where the claim was disputed on the ground that there was no lay-off but there was a closure a petition under section 33-C(2) of the Industrial Disputes Act was not maintainable, the Court held:—

“In substance the point urged by the appellants was that if a claim is made on the basis of a lay-off and the employer contends that there was no lay-off but closure, it is not open to a labour ??? to entertain an application under section 33-C(2). The more so it was stated, when the dispute was not between a solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who was faced with numerous applications before the Labour Court for computation of benefit in terms of money as has been said already, the Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay-off. If it took the view that there was a lay-off without any closure of the business it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter V-A. In our opinion the High Court's conclusion that ‘In fact the business of this company was continuing. They in fact continued to err ploy several employees. Their notices say that some portions of the mills would continue to work was unexceptionalable. The notices which we have referred to can only lead to the above conclusion. The Labour Court's jurisdiction could not be ousted by a mere plea denying the workman's claim to the computation of the benefit in terms of money, the Labour Court had to go into the question and determine whether, on the facts, it had jurisdiction to make the computation. It could not however, give itself jurisdiction by a wrong decision on the jurisdictional plea.

57. Thus where the right is conferred by a statue and in view of that statutory right the workmen make a claim for the money due or for computing the benefit in terms of money, by way of a petition under Sec. 33-C(2), the Labour Court will have jurisdiction. Merely because, the employer denies the workmen's right, the Labour Court's jurisdiction is not ousted. Since the Labour Court has jurisdiction to try all incidental questions necessary to award the relief of the workmen, upon the denial of the workmen's right the jurisdiction of the Labour Court is not ousted. It can determine that jurisdictional fact. If it comes to the conclusion that the right of the workmen to claim the monetary benefit conferred by the statute is established it can compute the monetary compensation due to them under section 33-C(2). This decision of the Supreme Court in Bansilal Abirchand Mills. Company Ltd. v. Labour Court, Nagpur (3) 1972 (1) Lab. L.J 231 : 1972 S.C 451, which was rendered by a Bench of five Judges (including S.C Roy, J. who concurred with the other judges constituting the Bench but who unfortunately passed away before the judgment was delivered) specifically held with reference to certain observations of the Supreme Court in U.P Electricity Supply Co. v. R.K Shukla (2) 1969 (2) LLJ, 728 : 1970 (1) SCR 507 : 1970 S.C 237, rendered by a Bench of two judges, that they went to show that “when the factum of retrenchment is questioned, there is a dispute which is exclusively within the competence of the Industrial Tribunal. These observations cannot be considered to be binding on us, as all the aspects were not placed before the Court then”.

58. This position was reiterated by the Supreme Court in Namor All v. C.I.W.T Corporation (25) (1977) 4 SCC 575 : A.I.R 1978 S.C 275 : 1978 (1) Lab. L.J 165, as follows.

“On a plain reading of the wordings of the Statute it would be found that where any workman is entitled to receive from employer any money and if any question arises as to the amount of money due, then the question may be decided by the Labour Court. The expression “if any question arises as to the amount of money due” embraces within its ambit any one or more of the following kinds of disputes:

1. Whether there is any settlement or awards as alleged?

2. Whether any workman is entitled to recieve from the employer any money at all under any settlement or an award etc.?

3. If so, what will be the rate or quantum of such amount?

4. Whether the amount claimed is due or not?

Broadly speaking these will be the disputes which will be referable to the question as to the amount of money due. If the right to get the money on the basis of the settlement or the, award is not established, no amount of money will be due. It is established, then it has to be found out albeit it may be mere calculation, as to what is the amount due for finding it out it is not necessary that there should be a dispute as to the amount of money, due also. The fourth kind of dispute which we have indicated above obviously and literally will be covered by the phrase amount of money due. A dispute as to all such questions or any of them would attract the provisions of section 33-C(2) of the Act and make the remedy available to the workman concerned”.

and stated:

“It is not necessary to elaborately discuss the various authorities of this court on the point. To our mind the view we have expressed above is plainly and squarely covered by the principles of law enunciated by this Court in several decisions; to wit. Central Bank of India Ltd. v. P.S Rajagopalan etc., 1964 (3) S.C.R 140 : AIR 1964 SC 743; R.B Bansilal Abirchand Mills Co. Ltd. v. Labour Court, Nagpur (1972 (2) SCR 580 : (1972) 1 SCC 154 : AIR 1972 S.C 451) and Suha Minerals and Properties Ltd. v. Presiding Officer Labour Court, ((1976) 3 SCC 93 : AIR 1975 SC 1745)”.

59. It is contended that this latter decision in RBA Mills Co. v. Labour Court, Nagpur (3) 1972 (1) Lab L.J 231 : 1972 S.C 451, did not specifically over-rule the judgment in U.P Electricity Supply Co. v. R.C Shugla (2) 1969 (2) Lab L.J 728. But whether it specifically over ruled the earlier judgment or not when a larger Bench of the Supreme Court it self has observed that all the aspects were not brought to the notice of the Court in its earlier judgment anything contrary to the latter judgment in Bansilal Abirchand Mills Co. Ltd. v. Labour Court, Nagpur (3) 1972 (1) Lab L.J 231 : 1972 SC 451, contained in the earlier judgment cannot be taken as the correct position of law or binding on this court. In view of the latter judgment, merely because the factum of retrenchment is disputed the Labour Court's jurisdiction to determine the compensation under section 33C(2) cannot beheld to have been ousted. In that view of the matter, the judgment of our High Court in Swastik Manufacturers v. Labour Court (1) 1977 Lab I.C 1725, wherein the employees' claim for retrenchment compensation, leave salary, minimum bonus etc. was held to be not maintainable under section 33-C(2) of the Industrial Disputes Act, cannot be held to be laying down the correct position of law. The right to retrenchment compensation and minimum bonus having been conferred by a statute, it constitutes an existing right and the employees in making an application under section 33-C(2) for awarding the money due to them under the said heads, merely seek the computation of the said amount. In such a case even if the employer contends that there was no retrenchment and that the workman had left Service of their own accord and consequently were not entitled to retrenchment compensation and minimum bonus, the Labour Court has jurisdiction to decide the incidental question as to which of the assertions is correct, the mere denial of the workman's assertion by the employer that there was retrenchment does not oust the jurisdiction of the Labour Court to entertain the petition.

60. What matters are incidental to an enquiry under Sec. 33-C(2) may be gathered from some of the decisions of the Supreme Court.

61. In Central Bank of India v. Rajagopalan (17) A.I.R 1964, S.C 743, Gajendragadkar. J., speaking for the Constitution Bench held:

“The claim under section 33-C(2) clearly ??? that the determination of the question about computing the benefits in terms of money may in some cases have to be proceeded by an enquiry info the existence of the right and such an enquiry must be held to be incidental to the main determination which has been as signed to the Labour Court under sub-section (2)”.

62. The Supreme Court further held:

“The Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under Sec. 33C(2).”

63. In Voltas Ltd. v. J.N Dememio (26) 1971 (II) Lab. L.J 307. The Supreme Court pointed out that—

“…proceedings under section 33-C(2) are analoguous to execution Proceedings and a Labour Court called upon to compute benefits claimed by a workman is in the position of an executing Court and as such competent to interpret an award where there is a dispute as to the rights thereunder or as to its correct intrepretation. Obviously, if the award is unambiguous the Labour Court is bound to enforce it and under the guise of interpreting it cannot make a new award by adding to or subtracting anything therefrom. Although it cannot go behind the award it is nevertheless competent to construe the award where it is ambiguous and to ascertain its precise meaning, for unless that is done, it cannot enforce the award when it is called upon to do so by an application under Section 33-C”.

64. The Supreme Court once again reiterated what was said in the Central Bank of India v. Rajagopalan (17) 1963 (II) Lab. L.J 89 : 1964 (3) SCR 140 : AIR 1974 S.C 743.

65. In Bansilal Abirchand Mills Company Ltd. v. Labour Court Nagpur (3) 1972 (1) Lab. L.J 231 : 1972 S.C 361, it was held:

“The Labour Court's jurisidiction could not be ousted by a mere plea denying the workman's claim to the computation of the benefit in terms of money. The Labour Court had to go into the question and determine whether on the facts it had jurisdiction to make the computation.

66. Applying that principle, where there was a dispute as to whether there was to Say-off or not, the Court declared:—

In a petition under section 33-C(2) the Labour Court must go into the matter and come to a decision as to whether there was a closure or a lay-off if it took the view that there was really a closure or a lay-off without any closure of the business, it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter V-A”.

and accordingly held that the petition was maintainable.

67. In Central Bank Of India Ltd. v. Sisir Kumar Shaw (27) 1976 (1) L.L.J 90, where the workman claimed under Sec. 33C(2) certain special allowances payable to special assistants and to those doing duties at the clearing house, the question whether these workmen though not designated as ‘Special Assistants’ were discharging those additional duties and functions requiring greater skill and responsibilities over and above the routine duties and functions of a workman in the same cadre as required under paragraphs 5 & 6 of the bipartite agreement and in accordance with Appendix “B,” to the said agreement, the Court held that, that was a matter which could be gone into in a petition under Section 33C(2). The Court observed that in doing so.

“What the Labour Court was doing was to interpret the terms of the bipartite agreement and it is entitled to do so under that Section.

68. It accordingly upheld the order of the Labour Court awarding special allowances even to workmen who were not disignated Special Assistants.

69. These several decisions clearly establish that where there is an existing right, matters incidental thereto can be gone into in a petition under section 33-C(2) for ascertaining the money due or the benefit due to the workman.

70. To sum up A petition under section 33-C(2) of the Industrial Disputes Act is maintainable where an individual workman for workmen claim amount of money due or amount at which the benefit should be computed. But such claim must be based on an existing right. The existing right itself should have vested in them either under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B or conferred under the provisions of any statute. Once the right is shown to be existing under any of the above, the Labour Court would have jurisdiction to entertain the petition and ascertain the money due or the amount at which the benefit may be computed. The mere denial of such an existing right by the employer does not take away the jurisdiction of the Labour Court to entertain a petition under section 33-C(2) of the Industrial Disputes Act. While the right itself should been existing right for enabling a workman to maintain a petition under section 33-C(2), it is not necessary that this existing right should have been admitted by the employer. The denial of the existing right of the workman to receive money or the benefit does not oust the jurisdiction of the Labour Court to entertain a petition under section 33-C of the Industrial Disputes Act and require the reference of the dispute raised for adjudication under section 10 of the Act. The denial of this right would only require the Labour Court to enquire into the fact whether the right is existing. The Labour Court has jurisdiction to decide and determine this jurisdictional fact. The enquiry under section 33-C(2) in such cases would have to be proceeded by an enquiry into the existence of the right and such an enquiry is incidental to the main determination which has been assigned to the Labour Court by sub-sec. (2). It cannot by an order under section 33-C(2), however, create a new right. Section 33-C(1) applies to cases were money is due to a workman under an award or settlement or under Chapter V-A of the Act already calculated and assertained and therefore 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 where such benefit, though due is not calculated and there is a dispute about its calculation. section 33-C(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money even though the right to the benefit on which their claim is based is disputed by their employers. Just as an executing Court is competent to interpret the decree, so also the Labour Court is competent to construe the settlement, award or a statute under which the right is claimed. Matters such as interpretation of an award, whether the workman falls within a particular class of workmen entitled to the benefits under the settlement, award or the statute, the total amount due or the amount at which the benefit should be computed are all matters falling within the jurisdiction of the Labour Court, under section 33-C(2). This enumeration of matters incidental to an enquiry under section 33-C(2) is by no means exhaustive; nor is it meant to be so. They are only illustrative. We are therefore clearly of the view that the Award Dated 16-2-1950 made in ID 1 of 1949 by the Industrial Tribunal, Hyderabad and notified on 31-3-1950 under the Trade Disputes Order is subsisting. Inasmuch as the operation of the said Award has not been terminated by either parties thereto by giving a notice as envisaged by Section 19(6) of the Industrial Disputes Act, it continued to bind the petitioners and respondents 1 to 16 herein. The benefit conferred on the respondents under the said Award is not lost or taken away by respondents 1 to 16 receiving any revised pay scales. Their claim to receive the benefit conferred under the said award is thus based on an existing right. Respondents 1 to 16, workmen are therefore entitled to receive the benefit which is capable of being computed in terms of money. On account of the petitioner's denial of the respondent workmen's right, the jurisdiction of the Labour Court under section 33-C(2) is not ousted. Their petition-under section 33-C(2) for ascertaining the amount at which the benefit conferred on them by the award dated 16-2-1950 may be computed and for granting the same is maintainable. It is the duty of the Labour Court to compute the benefit due to the workmen in terms of money and award the money so found due to them. The objection as to the jurisdiction of the Labour Court and the other contentions raised by the petitioner do not merit acceptance and are, therefore, rejected.

71. In view of the above discussion and the conclusions reached by us, this Writ Petition fails and is accordingly dismissed with costs. Advocate's fee Rs. 250/-