Chandurkar, J.:— The main question which arises for decision in this petition filed by the employer is whether in a proceeding under S. 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), the Labour Court can go into the question whether the applicant before it is a “workman” within the meaning of S. 2 (s) of the Act.

2. The petitioner admittedly owns a bidi factory at Kamptee. The then Government of Bombay fixed the minimum wages payable by the employers in the bidi making industry to the employees employed in that industry issued under S. 5(2) read with S. 5(1) (b) of the Minimum Wages Act, 1948, on 11 June 1958. Consequent on the issuance of this notification, the petitioner by notice, dated 24 June 1958, declared its intention to temporarily close down the factory purporting to act in the exercise of its powers under Cl. 11 of the standing orders. The petitioner has reproduced the material part of this notice in the petition, which is as follows:

“We hereby, therefore, further wish to inform that the above and closure of the bidi making business of the firm will continue as long as the notification, dated 11 June 1958, continues in force and is not withdrawn.”

Admittedly the factory of the petitioner was closed temporarily from 1 July 1958, till it was reopened on 10 August 1958. According to the petitioner all the employees were taken back on work including respondent 3. Respondent 3 applied to the Labour Court at Nagpur under S. 33C(2) of the Act alleging that she was in the employment of the petitioner as a bidi binder and her average daily earning was Rs. 1.69 She claimed that she was entitled to the “benefit of Rs. 1 69 on account of retrenchment and one month's notice-pay in lieu of one month's notice.” She had alleged in her application that the factory was closed as from 1 July 1958, as a result of which she and other workers employed therein were retrenched and that she had put in seven years of continuous service. She claimed that the benefit which she was claiming was capable of being computed in terms of money and she, therefore, prayed that the said benefit may be computed in terms of money and the amount payable to her should be determined. It is not in dispute that several employees of the petitioner have also made similar applications.

3. The petitioner filed a consolidated printed written statement in which the claim of respondent 3 was denied. We are not concerned with the several grounds on which the claim of respondent 3 was contested by the petitioner. We, therefore, refer only to those parts of the written statement which are relied upon at this stage before us. In Para. 1 of the written statement, the petitioner denied that respondent 3 was employed as a bidi binder and that it was alleged that she was binding bidis on contract basis as a piece-rated worker and that there was no relationship of master and servant between the parties. In Para. 5 of the written statement, it was alleged that the Labour Court had no jurisdiction under S. 33C of the Act to entertain the application of respondent 3 as there was a serious dispute between the parties as to whether then was any retrenchment at all and there was also a dispute regarding the amount of compensation claimable by respondents, who hereinafter is referred to as the employee. It is alleged that in the absence of any such ascertained amount, neither the Government nor the Labour Court has any jurisdiction to make any direction regarding the payment of any compensation under S. 33C of the Act. In Para, 20 the petitioner had averred that the employee was not a worker within the definition of S. 2 (l) of the Factories Act, 1948, and that she was binding bidi on contract basis as a piece-rated worker and there was no relationship of master and servant between the petitioner and the employee.

4. Before the Labour Court proceeded to enquire into the merits of the claim made by the employee, the petitioner filed this petition in this Court challenging the jurisdiction of the Labour Court to decide the application of the employee. Though several grounds were raised in the petition, before us the jurisdiction of the Labour Court was challenged only on the grounds that it had no jurisdiction to go into the question whether the employee was a workman as contemplated by S. 2 (s) of the Act, and that the Labour Court, in exercise of its jurisdiction under S. 33C(2) of the Act, could not entertain the application for payment of retrenchment compensation. In addition to these two grounds, the learned counsel challenged the validity of the provisions of S. 33C(2) of the Act on the ground that they violate the fundamental rights of the petitioner under Arts. 19 and 14 of the Constitution of India.

5. We shall first consider the argument of the learned counsel for the petitioner that the Labour Court could not enquire into the question as to whether the employee was a workman within the meaning of S. 2 (s) of the Act. According to the learned counsel, under S. 33C(2) of the Act, a workman has been given a right to apply to the Labour Court under S. 33C(2) of the Act and unless the employee got his status determined as a “workman” by the competent authority, he would not be entitled to invoke the jurisdiction under S. 33C(2) of the Act. In the instant case, according to the learned, counsel respondent 3 was an independent contractor and not an employee and since the relationship of the employer and the employee is challenged, and the petitioner had denied the status of the respondent 3 as a workman, the Labour Court had no jurisdiction to entertain the application of respondent 3. Apart from the decisions of the Supreme Court in Central Bank of India, Ltd. v. P.S Rajgopalan [A.I.R 1964 S.C 743] and Central Inland Water Transport Corporation, Ltd. v. Its workmen [1974—II L.L.N 78] the learned, counsel has relied in support of his arguments on a decision of the Punjab High Court in Sher Singh Verma v. Rup Chandra [(1965) 30 F.J.R 206] and a decision of the Delhi High Court in Tek Chand v. Labour Court, Delhi. [1974—II L.L.N 45]. In the latter two cases, view has the been taken that the Labour Court has no jurisdiction under S. 33C(2) of the Act to decide whether a person is a workman or not under he Act.

6. The provisions of Ss. 33C(1) and 33C(2), which have now been the subject-matter of a large number of decisions of the Supreme Court, the last one being the case of Central Inland Water Transport Corporation, Ltd. [1974—II L.L.N 78] (vide supra), read as follows:

“33C. Recovery of money due from an employer—

(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chap. V-A, the workman himself or any other person authorized by him in writing in this behalf or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of money due to him, and if the appropriate Government is satisfied that any money is so due, if shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue;

Provided that a very such application shall be made within one year from the date on which the money became due to the workman from the employer:

Provided further that any such application may be entertained after the expiry of the said period of one year if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.

(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules ‘that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government

If may be noted that S. 33C as it stands at present was introduced by the Industrial Disputes (Amendment) Act, 1964 (36 of 1964). Prior to that Sub-sec. (2) was slightly in a different form when it was introduced by S. 22 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, which came into force with effect from 10 March 1957. The original Sub-sec. (2) of S. 33C reads as below:

“Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, bs determined by such Labour Court as may be specified in this behalf by the appropriate Government and the amount so determined may be recovered as provided for in Sub-sec. (1).”

Apart from some minor changes in Sub-sec. (2), an important change which was made was the addition of the words “any money” and the consequent addition of the words “as to the amount of money due.” These additions, however, have made no difference to the construction which has been consistently placed on the scope and the nature of the powers of the Labour Court under S. 33C(2) of the Act. In Central Bank of India Ltd. v. Rajagopalan (P.S) [A.I.R 1964 S.C 743] (vide supra) the Supreme Court pointed out that the object of the enactment of S. 33C was to provide for a speedy remedy to an individual workman to enforce or execute their existing rights in the same case, the Supreme Court pointed out that mere denial of a right of the workman by the employer does not take away the jurisdiction of the Labour Court under S. 33C(2) and that that claim under S. 33C(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 that 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-sec. (2). The Supreme Court observed:

“In our opinion, on a fair and reasonable construction of Sub-sec. (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit if the said right is not a disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with the question and decide whether the workman has the right to receive the benefit as alleged by him. and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. (Italics is ours)

Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by Sub-sec. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to out the jurisdiction of the Labour Court to entertain the workman's application. The claim under S. 33C(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-sec. (2).”

In the same case, the Supreme Court further pointed out that under S. 33C(2) the Labour Court exercises the executive powers similar to those of an executing Court and just as if is open to the executing Court to interpret the decree for the purposes of execution in appropriate cases, it would be open to the Labour Court to interpret the award or settlement on which the workmen's right rests for the purposes of making the necessary determination under S. 33C(2). The view that a mere denial of a right or the claim of the employee who applies under S. 33C(2) of the Act cannot oust the jurisdiction of the Labour Court was reiterated by the Supreme Court in Chief Mining Engineer, East India Coal Company, Ltd., Bararee Colliery, Dhanbad v. Rameshwar [A.I.R 1968 S.C 218] While enumerating the propositions, which flowed from the decision of the Supreme Court in Punjab National Bank, Ltd. v. Kharbanda (K.N) [A.I.R 1963 S.C 487], Central Bank of India, Ltd. v. Rajagopalan (P.S) [A.I.R 1964 S.C 743] (vide supra) and Bombay Gas Company, Ltd. v. Gopal Bhiva [A.I.R 1964 S.C 752], the Supreme Court pointed out that S. 33C(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 and it is open to the Labour Court to interpret the award or settlement on which the workman's right rests. We have referred to these decisions to point out that it is now settled law that mere denial of the right of an employee does not oust the jurisdiction of the Labour Court and the Labour Court has been held entitled to make an enquiry into the right which is claimed by the employee. The same must hold good in our view in a case where the status of a workman is denied by the employer and mere denial of the status by the employer on the ground that he is not a workman within the definition of the Act will not divest the Labour Court of its jurisdiction to entertain the application of the employee. Where an employee makes an application on the ground that he is entitled to any money, or that he wants any benefit to be computed in terms of money, but employer challenges the jurisdiction of Labour Court on the ground the parson who invokes the jurisdiction of the Labour Court is not entitled to make the application because he is not a workman as defined in the Act, the question whether the applicant was a workman as defined in the Act or not must fall for decision before the Labour Court at the threshold of the proceedings. An application under S. 33C(2) of the Act can be made only by a workman and he has to prove that he is entitled to receive from the employer any money or that he is entitled to the benefit which is claimed by him and is capable of being computed in terms of money. Where if is disputed by the employer that the person who wants to invoke the jurisdiction of the Labour Court is not a “workman,” as defined in the Act, then the existence of the basic jurisdictional fact necessary for the exercise of jurisdiction by the Labour Court is put in issue and the Labour Court as a Court of limited jurisdiction bestowed upon if by the statute, must first satisfy itself that the facts which give jurisdiction to it to proceed further into the inquiry either to the existence of the right or to the entitlement of the person who wants that right to be executed exist. We may usefully refer to the analogy referred to by the Supreme Court in the case of Central Inland Water Transport Corporation, Ltd. [1974—II L.L.N 78] (vide supra). The Supreme Court has pointed out that in a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed fo the determination of

(i) the plaintiff's right for relief;

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

(iii) the extend of the defendant's liability, if any.

It was pointed out that the working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. It was then observed (in Para. 13 at page 84):

“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 score. 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 is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief”

Now, when a person applies to a Labour Court for relief, it is well established that the relief which may be in the form of a claim for money due, or a claim for money by way of computation of a benefit, must be founded on an existing right to the money or the benefit, which may have been previously adjudged or otherwise duly provided for already, such a right may be found in an award or a settlement, or in some cases it may be found in a statute, such as in Chap. V-A of the Act, which provides for payment of different kinds of compensation in Ss. 25FF and 25FFF. The employer may challenge the title of the applicant in more senses than one. He may challenge the title of the applicant before the Labour Court in the sense that though the right is to be found somewhere and there is an existing right, the applicant before it is not entitled to that right, or he may challenge the title in the sense that the applicant is not a person who can exercise or enforce that right in the proceedings under S. 33C(2), In both these cases the proceedings do not cease to be of executing nature. In any case they do not fall into the categories (1) and (ii) referred to by the Supreme Court giving analogy of the suit. Even in an execution proceeding, where the judgment-debtor challenges the capacity of the decree-holder to take a proceeding for execution, the executing Court can go into the question whether the person invoking the jurisdiction is entitled to initiate the proceedings and if so, whether he is entitled to the relief asked for. On the same analogy, therefore, where the right of a person to apply to the Labour Court under S. 33C(2) of the Act is challenged on the ground that he does not satisfy the basic qualification or the condition precedent for his invoking the jurisdiction of the Labour Court, the question of title or the status of the person so applying is an incidental matter and in our view, it will be competent for the Labour Court under S. 33C(2) to inquire into the question whether the person invoking its jurisdiction is a “workman” or not within the meaning of the Act.

7. The Punjab and the Delhi High Courts in the decisions relied upon by the petitioner have taken a view that the Labour Court cannot go into the question whether a person is a workman or not. In Sher Singh Verma case [(1965) 30 F.J.R 206] (vide supra), the learned single Judge referred to S. 33C(2) and observed as follows:

“The reading of the section shows that it is only where a workman is entitled to certain benefits that the Labour Court can compute them. But, where the existence of relationship of workman and employer is itself in dispute, the matter would fall under S. 10 of the Industrial Disputes Act and consequently the remedy available to an employee would be to raise an industrial dispute. The Labour Court under S. 33C(2) is primarily given power to execute or implement his existing individual right and it may, therefore, be necessary in some cases to determine such right. Such determination, however, must be confined to matters incidental to the main issue, namely, the computation of benefits to which a workman is entitled. The question whether the claimant is a workman at all or not would not be incidental to the determination of the main question.”

The learned Judge has taken the view that if S. 33C(2) is so construed as to enable the Labour Court to go into the question, whether the claimant is a workman at all or not could fall under S. 33C(2) then the provisions of S. 10 would, at least to a considerable extent, be reduced to silence. With respect we are unable to agree with the view taken by the learned Judge. By enacting S. 33C(2), the Legislature wanted to provide for a speedy remedy to an individual workman working out his existing rights. If on a mere raising of the objection by the employer that the employee who has made an application under S. 33C(2) is not a workman, the Labour Court is to be divested of the jurisdiction vested in it under that provision the very object of enacting S. 33C(2) could be frustrated by the employer. While it is true that the scope of S. 33C(2) could be so widened as to enable the Labour Court to decide the dispute which can legitimately be described as industrial dispute between the employer and the employee, it must be borne in mind that the jurisdiction of the Labour Court which functions as an executing Court, cannot be ousted merely by deputing the status of the person invoking its jurisdiction. Since the question whether a person is a workman or not relates to the jurisdiction of the Labour Court, as already pointed out by us, it must be open to that Court to decide the facts on which it gets the jurisdiction or the jurisdiction is ousted. In the other case in Tek Chand v. Labour Court, Delhi [1974—II L.L.N 45] (vide supra), a learned Single Judge of the Delhi High Court following the decision in Sher Singh Verma case (vide supra), has observed that where the very status of the petitioner was in dispute, it could not be urged that it was open to the Labour Court to adjudicate upon the question of the petitioner's status as a workman. However, in a later decision, a Division Bench of the same High Court has taken a contrary view and did not follow the decision in Sher Singh case (vide supra) and the decision in Tek Chand case (vide supra), was overruled (see Yad Ram (by legal representatives) v. Labour Court, Delhi, [1974-II L.L.N 211].

8. The learned coursel for the petitioner has also relied upon a decision of this Court in Special Civil Application No. 376 of 1966 Ramakrishna Ramnath (Bidi)(Private), Ltd. v. Payment of Wages Authority, Gondia,. The Division Bench in that case was considering the scope of the jurisdiction and the powers of the Payment of Wages Authority under S. 15 of the Payment of Wages Act which was dealing with an application of an employee claiming one month's notice-pay, and retrenchment compention under S. 25 FFF of the Industrial Disputes Act. A preliminary objection was raised to the maintainability of the application under the Payment of Wages Act on the ground that the claimant was an independent contractor and not an employee inasmuch as he was paid by the outturn of the work per thousand bidis and, therefore, the provisions of the Industrial Disputes Act were inapplicable. The Division Bench held that though the mere denial of the employment was not enough to divest the jurisdiction of the Payment of Wages Authority, the question whether the claimant was an independent contractor or an employee was beyond its jurisdiction as two different kinds of relationships were alleged by either of the parties and such a question could not be regarded as merely incidental to the dispute between the parties, viz., whether the wages were delayed and there was deduction in the wages. In our view the decision which turned on the construction of S. 15(2) of the Payment of Wages Act cannot be of any assistance for the construction of the scope of S. 33 C(2) which has already become the subject-matter of several decisions of the Supreme Court. We may, however, point out that while dealing with the jurisdiction of the Payment of Wages Authority, the Supreme Court has observed in Ambica Mills Company Ltd. v. S.S Bhatt, [A.I.R 1961 S.C 970], that where a claim is made by one employee on the ground of alleged illegal deduction or delay in payment of wages the question whether the relation of employer and employee subsists will fall for determination by the Payment of Wages Authority.

9. The view which we have taken finds support in a Division Bench decision of the Delhi High Court in Yad Ram (by legal representatives v. Labour Court, Delhi, [1974—II L.L.N 211] (vide supra). In this case the Delhi High Court has taken the view that where there is a denial by the employer of the relationship of employer and an employee, the Labour Court has jurisdiction to decide that question. It was pointed out (in Para. 11 at page 219):

“… A mere denial by the employer about the existence of the relationship of workman and employer will not oust the jurisdiction of the specified Lobour Court. But if it is contended by the employer that during the period for which the claim is made the applicant was not a workman as his services had been terminated or he had been dismissed, then the specified Labour Court will determine whether the services were terminated or the workman was dismissed as alleged but will not go into the question of the validity of the termination or dismissal. It would not matter if the applicant was a workman on the date of his application, if it is proved that he was a workman during the relevant period for which the claim is made.”

The Delhi High Court also referred to the case of Sher Singh Verma [(1965) 30 F.J.R 206], decided by the Punjab High Court and observed as follows (in Para 9 at page 217):

“…In Sher Singh v. Rup Chandra, S.K Kapur, J., held the view that where the existence of relationship of workman and employer is itself in dispute, the specified Labour Court cannot determine the same under S. 33C(2) of the Act as the matter would fall under S. 10 of the Act and the remedy available to the employee would be to raise an industrial dispute. In this case Tapeshwari Dass made an application under S. 3JC (2) of the Act to the specified Labour. Court alleging himself to be a workman and praying for computation of retrenchment compensation under S. 25FFF of the Act. The employer raised as objection that the relationship of employer and workman never existed between the parties and the Labour Court had ao jurisdiction to proceed on merits without deciding this issue. The learned Judge noticed the observation of the Supreme Court in the case of Central Bank of India, Ltd. [A.I.R 1964 S.C 743] (vide supra), but on the scope and ambit of S. 33C(2) made the aforesaid observation. The learned Judge was also of the view that the question whether the claimant is a workman or not is not incidental to the determination of the main question and that if the workman's contention be upheld, then most of the industrial disputes would fall under S. 33C(2) and the provisions of S. 10 would at least to a considerable extent be reduced to silence. With respect, we disagree. In an application under S. 33C(2) of the Act, a workman has to establish his title to the money or benefit because it is the workman who is entitled to receive the money or benefit who can make the application. The title of the applicant as a workman is, therefore, a condition precedent to the making of an application under S. 33C(2), He has to show that he is a workman who is entitled to it. The objection of the employer denying the existence of relationship is a denial of title. that is, a denial that the condition precedent has been satisfied. The jurisdiction of the specified Labour Court is to grant the money or benefit only to a workman who is entitled to it. It is, therefore, implicit in the exercise of jurisdiction that the specified Labour Court has to determine the title of the applicant as a workman and therefore, determine the existence of the relationship of workman and employer if it is denied.”

The learned Judges then referred to the observations of Lord Esher, MR in Queen v. Commissioners for Special Purposes of the Incometax [(1888) 21 Q.B.D 313], dealing with the jurisdiction which are by way of conditions Precedent to the exercise by them of their jurisdiction. After quoting those observations and referring further, the Division Bench further observed (in Para. 10 at pages 218-219):

“…S.K Kapur J., was right in saying that a specified Labour Court under S. 33C(2) of the Act cannot go into any question which can properly be the subject-matter of an industrial dispute under S. 10 of the Act. But the question whether the relationship of workman and employer exists is not such a question. In our opinion, the principle applicable should be that if an applicant who alleges himself to be a workman is met by a plea that the relationship of workman and employer does not exist as the services of the concerned workman have been terminated or that he has been dismissed, the workman cannot assert that the termination of his services or his dismissal was wrongful. In other words, if the workman admits the termination or dismissal but challenges the validity of it, he cannot invite a specified Labour Court under S. 33C(2) to determine the question because he must first get his order of termination or dismissal set aside by raising an industrial dispute…”

The Division Bench further observed (in Para. 10 at page 219):

“…But the workman can assert that there was in fact no termination or dismissal as alleged by the employer and in such a case, the specified Labour Court will have jurisdiction to determine the issue. If it finds that the services of the workman were terminated or that he had been dismissed before the period for which the claim is made, it has to stay its hands, and if it does not find so, it can compute the benefit…”

The Division Bench of the Delhi High Court thus held that the question whether the relationship of workman and employer exists or not is not a question which can properly become the subject-matter of an industrial dispute under S. 10 of the Industrial Disputes Act, 1947, and when in a proceeding under S. 33C(2) the status of the applicant as a workman is disputed the specified Labour Court can decide the said question. The Division Bench dissented from the contrary view taken in the single Bench case of that Court Including Tek Chand case [1974—II L.L.N 45] (vide supra), relied upon on behalf of the petitioner and observed that these cases did not contain any independent reasoning and the view taken therein could not be sustained. The view taken by the Delhi High Court has our respectful concurrence. We may also refer to a Division Bench decision of the Gujarat High Court in Chimanlal B. Joshi v. Nagrashna (M.N) Second Labour Court, Ahmedabad [1965 — I L.L.J 318], where it has been held that a Labour Court under S. 33C(2) has jurisdiction to decide the question whether the applicant is a workman entitled to claim the benefit from the concerned respondent and whether the relationship of master and servant existed between them during the relevant period. We are, therefore, of the view that the mere denial by the petitioner of the status of respondent 3 as a workman will not oust the jurisdiction of the Labour Court and the Labour Court is competent to go into the question whether respondent 3 was a workman within the definition of the term in S. 2(s) of the Act. Such an enquiry was incidental to the main claim made by respondent 3.

10. It was then contended on behalf of the petitioner that the application filed by the claimant-respondent 3 is substantially a claim far retrenchment compensation and such a claim covered by Chap. V-A of the Act could not be entertained by the Labour Court and the Labour Court cannot go into the question whether in fact there was retrenchment or not. Now it is not disputed that the factory of the petitioner was closed from 1 July 1958 till it was reopened on 10 August 1958 and it is for this period that the employee claimed the compensation which was termed as “benefit” on account of retrenchment. The application filed by the employee is not founded on any right which is claimed by virtue of any award or any previous adjudication but it is obvious that the benefit which she is claiming for purposes of computation has its basis in S. 25FPF of the Act, which provides for compensation to a workman in case of closing down of an undertaking. Reliance is placed by the learned counsel for the petitioner on a decision in Uttar Pradesh Electric Supply Company, Ltd. v. Shukla (R.K) [(1969) 2 SCC 400 : A.I.R 1970 S.C 237]. In that case the Electricity Supply Company held licences under she Indian electricity Act, 1910, for generating and distributing electricity within the towns of Allahabad and Lucknow and after the expiry of the licence, the company was taken over by the State Electricity Board. The company, therefore, ceased to carry on the business of generation and distribution of electricity in the areas covered by the original licences, and the workmen of the undertakings at Allahabad and Lucknow were taken over by the Board in the employment of the Board without any break in the continuity of employment. The workman applied to the Labour Court under S. 6H (2) of the Uttar Pradesh Industrial Disputes Act for payment of retrenchment compensation and salary in lieu of notice on the ground that fresh letters of appointment were issued by the Board on 16 September 1964, which was the date of the take-over taking the employees in the employment with effect from 17 September 1964, but without giving credit for their past services in the company and, therefore, they contended that they were entitled to retrenchment compensation and salary in lieu of notice. They prayed for computation of this benefit in terms of money. The Labour Court awarded to each worker retrenchment compensation at the rate specified in the order and also one month's salary and costs. These orders were challenged on the ground that the Labour Court was incompetent to entertain and decide the application for awarding retrenchment compensation and that the workmen were not in fact retrenched, and in any event since the workmen were admitted to the service of the Board without break in continuity and on terms not less favourable to them with the company, the company was under no liability to pay retrenchment compensation. Section 6H(2) of the Uttar Pradesh Industrial Disputes Act was substantially the same as S. 33C(2) of the Industrial Disputes Act. Sub-section (2) of S. 6H of she Uttar Pradesh Industrial Disputes Act reads as under:

“Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, be determined by such Labour Court as may be specified in this behalf by the State Government, and the amount so determined may be recovered as provided for in Sub-sec. (1),”

After referring to the decision in South Arcot Electricity Distribution Company, Ltd. v. Mohammad Khan (N.K) [1970 II L.L.J 44] and the decision in the case of the Central Bank of India, Ltd. v. Rajagopalan (P.S) [A.I.R 1964 S.C 743] (vide supra), and East India Coal Company v. Rameshwar [A.I.R 1968 S.C 218] (vide supra), the Supreme Court observed in Para, 15:

“The legislative intention disclosed by Ss. 33C(1) and 33C(2) is fairly clear. Under S. 33C(1) the right to retrenchment compensation which is the foundation of the claim is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon on a reference, it would be straining the language of S. 33C(2) to hold that the question whether there has been retrenchment may be decided by the Labour Court. The power of the Labour Court is to compute the compensation claimed to be payable to the workmen on the footing that there has been retrenchment. Where retrenchment is conceded, and the only matter in dispute is that by virtue of S. 25FF no liability to pay compensation has arisen the Labour Court is competent to decide the question. In such a case the question is one of computation and not of determination, of she conditions precedent to the accrual of liability. Where, however, the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, in our judgment, the Labour Court will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested.”

Now, so far as the present case is concerned, though the claim in substance is not based on the right in S. 25F, on principle it will make no difference whether the claim is made under S. 25F or 25FFF if the Tribunal cannot have the jurisdiction in a proceeding under S. 33C(2) for computing the compensation which is payable either under S. 25F or 25FFF. There is no manner of doubt that the claim by the employee is made on the footing that there has been a closure of the undertaking albeit temporarily and though the provisions of S. 25FFF have not been mentioned by her in her application, it is in substance and essence a claim to compute the statutory benefit under S. 25FFF, which refers to the measure of compensation as that laid down in S. 25F.

Section 25FFF provides:

“Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of Sub-sec. (2) be entitled to notice and compensation in accordance with the provisions of S. 25F, as if the workman had been retrenched.”

The proviso to that section provides:

“Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under Cl. (b) of S. 25F shall not exceed his average pay for three months.”

Section 25FFF, therefore, provides in the case of closure of an undertaking, for payment of compensation to a workman who is in a continuous service for not less than one year in that undertaking immediately before such closure. The quantum of compensation, however, has to be paid on the footing that the workman has been retrenched for which a provision is made in S. 25F. Now, in the instant case, on the admitted position that the undertaking had closed down it is this benefit which the employee wants to compute in terms of money. It is no doubt true that in view of the observations of the Supreme Court in Uttar Pradah Electricity Supply Company case [(1969) 2 SCC 400 : A.I.R 1970 S.C 237] (vide supra), the dispute as to whether there was a retrenchment or not could not have been tried by the Labour Court. Unfortunately for the petitioner, however, these observations of the Court in Uttar Pradesh Electricity Supply Company case (vide supra), have been departed from in R.B Bansilal Abirchand Mills Company, (Private) Ltd. v. Labour Court, Nagpur, [(1972) 1 SCC 154 : A.I.R 1972 S.C 451]. The Supreme Court in that case was dealing with a claim under S. 25C which provides for payment of lay-off compensation when the Labour Court had held that there was a general lay-off within the expression of S. 2(kkk) of the Industrial Disputes Act and that the employees were entitled to compensation for the full period of eighteen months but the workers who were badli workers, were not entitled to such compensation. The mills challenged the order of the Labour Court by a writ petition before the High Court. The High Court held that on the facts established that there was a lay-off within the meaning of the expression in S. 2 (kkk) and the Labour Court should have considered whether the workmen had proved that they had themselves presented for work in terms of S. 25E to be able to claim compensation under S. 25C, excepting with regard to three workmen who gave clear evidence on that point. The High Court remanded the cases to the Labour Court for recording fresh evidence on the issue whether the applicants prove that they presented themselves for work on the appointed time at least once a day within the meaning of S. 25E (ii). Before the Sepreme Court it was argued on behalf of the mills that it being the case of the employers that there was a closure of the mills, the dispute could not be adjudicated upon by the Labour Court and was entertainable only by the Industrial Tribunal under S. 10(???) (d) of the Act. According to the appellant before the Supreme Court if the essential nature of the dispute was a difference between the employer on the one hand and a very large body of workmen on the other, the employer making an assertion involving a matter covered by Sch. III to the Act, in which item 10 read “Retrenchment of workmen and closure of establishment,” it would not be open to the workmen to prefer claims individually under S. 33C. In aid of the contention that if the dispute touches a matter in Sch III, the Labour Court will not have jurisdiction to deal with it, reliance was placed on the decision in the case of Uttar Pradesh Electric Supply Company v. R.K Shukla (vide supra), where it was held that when the factum of retrenchment was questioned, there was a dispute which was exclusively within the competence of the Industrial Tribunal. The Supreme Court observed;

“these observations cannot be considered binding on us as all the aspects were not placed before the Court then.”

In view of these observations of the Supreme Court, it is now apparent that the decision in the Uttar Pradesh Electric Supply Company case (vide supra), that where the factum of retrenchment is questioned, the Labour Court under S. 33C(2) has no jurisdiction to go into the question cannot be of any assistance to the petitioners. After referring to the earlier decisions of the Supreme Court in Ramakrishna Ramnath v. Labour Court, Nagpur, [1970 — II L.L.J 306] and Sawatram Ramprasad Milk Company Ltd., Akola v. Baliram Ukandaji [A.I.R 1966 SC 616], disposed of the challenge to the jurisdiction of the Labour Court in the following words:

“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 Court to entertain an application under S. 33C(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 Chap. 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 employ several employees. Their notices say that some portions of the mills would continue to work”

was unexceptionable. 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 has jurisdiction to make the computation, it could not, however, give itself jurisdiction by a wrong decision on the jurisdictional plea.”

This decision, therefore, is clearly an authority for the proposition that where the claim is founded on the statutory provisions such as S. 25F or S. 25FFF and that claim is contested on the ground that there was no retrenchment or that there was no closure, then merely on such a plea the jurisdiction of the Labour Court cannot be ousted and the Labour Court was competent to go into the question firstly, whether there was a retrenchment or not or a closure or not; and in case the finding was in favour of the employee, then to proceed further to compute the benefit in terms of the rights given in Chap. V-A of the Act. The present case falls squarely within the dictum of the Supreme Court in R.B Bansilal Abirchand Mills Company case [(1972) 1 SCC 154 : A.I.R 1972 S.C 451] (vide supra): the whole case of the employee is that there had been a closure and it is the benefit which she is entitled to provisions of S. 25FFF that she wants to becomputed. The Labour Court in such circumstances would clearly have jurisdiction to go into the question of the closure the factum of which does not now seem to be disputed. The question whether there was closure or not, therefore, does not arise. The claim which then survives is merely one for computation, if the employee proves her entitlement or title to the benefit, for which she relies on the statutory provisions. We may refer to a decision of the Supreme Court in Ramakrishna Ramnath v. Labour Court, Nagpur, [1970 — II L.L.J 306] (vide supra), where the employees had made a claim for retrenchment compensation for some period and those claims were contested on the ground that the claimants were not employees but independent contractors and that there was closure to attract the provisions of S. 25 FFF of the Act and that the dispute could not be referred to the Labour Court. It does not appear that the challenge which is now made, viz., that the claimant was not a workman was raised in that case. The Labour Court allowed the claims of all the applicants barring three and held that they were entitled to compensation, under the proviso to S. 25 FFF and pay in lieu of notice as per schedule attached to the order. The points agitated before the Supreme Court were

(1) the disputes which were referred to the Labour Court fell within the jurisdiction of an industrial Tribunal. The jurisdiction under S. 33C(2) was a limited one and could not embrace a dispute of the nature in the case which could only fall under S. 10 of the Act;

(2) the issue raised in each case was a fundamental one not limited to mere computation of a benefit in respect of a right envisaged by S. 33C(2); and

(3) there was really no closure of the appellant's business but only a lock out or a temporary stoppage of work not attracting the operation of S. 25 FFF.

The fourth question which was raised before the Supreme Court was that in order to entitle the applicant to the benefit of S. 25 F it was obligatory on her to show that she has worked for 240 days in each year of service for which the claim was made.

The Supreme Court held that the Labour Court had jurisdiction to make a preliminary enquiry as to whether there had been closure of the business and the text of the notice made the determination of the question quite a simple affair. It was pointed out that the examination of the claim under S. 33C(2) may in Rome cases have to be preceded by an enquiry into the existence of the right and a mere denial of the fact of retrenchment would not be enough to take the matter out of the jurisdiction of the Labour Court. On facts it was found that the employer had failed to show that the undertaking was closed down on account of the unavoidable circumstances beyond the control of the employer and as such he was liable to pay the compensation under the principal part of (he Sub-sec. (1) of S. 25 FFF of the Act. We are now Informed that the petitioner had applied for the review of the finding that the closure was not covered by the provisions of S. 25F and the Supreme Court has reviewed its finding and the operative finding in that case was that the “closure” fell within the provision of S. 25FFF of the Act. That, however, was relevant only for the purposes of quantum of compensation and if would not charge the basic finding that an application made for computation of the benefit under S. 25 FFF could be enquired into by the Labour Court.

11. It is then contended by the petitioner that the provisions of S. 33C(2) are ultra vires the provisions of Art. 19(1) (g) of the Constitution of India inasmuch as there will be a continuous state of uncertainty. arising out of a possibility of an application for computation of the benefit by the employee because no time limit is fixed under S. 33C(2) for making such an application Section 33C(2), according to the learned counsel, therefore, imposes an unreasonable restriction on the right of the petitioner to carry on his business. Now it is no doubt true that s. 33c(2) of tha act does not prescribe any period of limitation for making an application for computation of a benefit. In Bombay Gas Company, Ltd. v. Gopal Bhiva [A.I.R 1964 S.C 75???] (vide supra), the Supreme Court has observed that the delay in making claims under S. 33C(2) cannot be considered against the applicant. It was pointed out that though in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, claims like bonus must be distinguished from claims made under S. 33C(2). It was further pointed out:

“A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a, claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government may refuse to make reference in that behalf. But these considerations would be irrelevant when claims are made under S. 33C(2) where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice It can be introduced, if at all, by the Legislature. Therefore, we think that the Labour Court was right in rejecting the appellant's contention that since the present claim was belated, it should not be awarded.”

Relying on these observations, it was urged that the business of the employer will always be in jeopardy because a claim under S. 33C(2) could be made at any time. It is difficult for us to accept the argument that the failure of the Legislature to prescribe a limitation for a claim under S. 33C(2) would invalidate these provisions on the ground that they constitute an unreasonable restriction on the rights of the petitioner under Art 19(1)(g) of the Constitution of India prescribing limitation for a suit or a proceeding is a matter of procedure and where no limitation is prescribed in respect of a claim, such a claim could always be made against the person who is liable to meet that claim at any time. The claim which can be enforced under S. 33C(2), as we have found, is a claim which flows from a right which is already existing or has already been adjudicated upon and in a given case the basis of the right may be found in a statutory provision. Where there is an existing right in favour of an employee, whatsoever may be its source. there is a corresponding liability of the employer. In the absence of any limitation, which, it is really for the Legislature to provide in case it so thinks fit, the liability of the employer to pay the employee the money which is due to the employee either as money or as a consequence of computation of benefit in terms of money will always submit till validly discharged. The Legislature has thought if fit not to impose any bar of limitation. One cannot make a grievance for the Legislature failing to make a provision for an artificial extinguishment of right by prescribing limitation for enforcement of the right. There is no right in any person to have the liability which is created either by a statute or by an award or by an order in any other competent proceeding discharged by mere lapse of time unless expressly so provided by the Legislature and if the Legislature fails to make such a provision either resulting in an artificial extinguishment of the right or barring the remedy, it is difficult to hold that the provision providing for a machinery for the enforcement of the liability amounts to an unreasonable restriction or that any fundamental right of the employer is infringed thereby. We are, therefore, unable to hold that absence of 1imitation in S. 33C(2) results in an unreasonable restriction on the right of the petitioner under Art. 19(1)(g) of the Constitution of India.

12. The last point urged by the learned counsel for the petitioner was that the Legislature has treated the same claims differently by enacting a period of limitation of one year in S. 33C(1) and by not enacting any period of limitation if the same claim is enforced under S. 33C(2) of the Act. The Supreme Court has pointed out in Central Bank of India case [A.I.R 1964 S.C 741] (vide supra), that while S. 33C(1) refers to a claim founded on a settlement or an award or under the provisions of Chap. V-A, there is a certain amount of overlapping between Ss. 33C(1) and 33C(2) and the categories of the rights provided for in S. 33C(1) would also be covered by Ss. 33C(1) and 33C(2) Therefore, according to the learned counsel, while the same liability if enforced under S. 33C(1), it has to be enforced within a period of one year, while it can be enforced at anytime under S. 33C(2) and, therefore, Ss. 33C(1) and 33C(2) of the Act are violative of Art. 14 of the Constitution of India. It is not necessary for us to decide this question in the present proceedings because limitation of one year by the proviso to S. 33C was introduced for the first time in 1964. The application out of which the present proceedings arise was made by the employees in August 1961. At that time there was no limitation either in S. 33C(1) or S. 33C(2) of the Act. So far as the present case is concerned, therefore, it will not be permissible for the petitioner to challenge the provisions of S. 33C(2) on the ground of violation of Art 14 of the Constitution.

13. Before we part with the case, we must mention that since we found that substantial question regarding construction of S. 33C(2) were involved in the case and the employee-respondent 3 was not represented, we requested Sri S.G Kukade to assist us and to present the point of view of the employee and he readily agreed. We must express our appreciation of the assistance given to us by Sri S.G Kukade.

14. In the view that we have taken, this petition must fail and is dismissed but there will be no order as to costs.

15. Since the applications are pending since 1961, it will be advisable for the Labour Court to decide all the issues involved in this case and the connected cases expeditiously instead of trying the issue of jurisdiction as a preliminary issue.

16. Leave to appeal to Supreme Court prayed for rejected.