V.K. Mehrotra, J.
1. This petition under Article 226 of the Constitution challenges an order passed by the Labour Court II, Kanpur (respondent No. 2) on April 30, 1977 under Section 33C(2) of the U. P. Industrial Disputes Act directing the petitioners to pay a sum of Rs. 3477 to the first respondent (Jhagreshwar Prasad) for having worked as a clerk from April, 1971 to October, 1974. A copy of the order has been appended as Annexure I to the writ petition, The two petitioners are the U. P. State Electricity Board and the Kanpur Electricity Supply Administration, Kanpur.
2. Annexure 2 to the writ petition is a copy of the application made by the first respondent under Section 33 C (2) of the U. P. Industrial Disputes Act (for brief, the Act). The first respondent asserted therein that he was appointed as a coolie in the year 1969 but in reality he had worked as a clerk from the year 1971 to 1974 as required by the petitioners. He was, consequently, entitled to receive salary of a clerk at varying rates from different dates. The applicant, according to the allegation made in paragraph 5 of the application, ought to have been put in the category mentioned therein but had wrongly been treated to be in lower category which also was mentioned therein. In the succeeding paragraph, the allegation made was that the applicant was entitled to higher rate of salary of the correct category and was entitled to receive a sum of Rs. 3560/30 as arrears mentioned in Annexure A to the application. In the next paragraph of the application, it was alleged that the applicant was also entitled to the arrears of overtime and bonus at higher rate of salary as per annexure A. It was then stated that since in spite of the repeated requests, the petitioners had not given him the amount to which the applicant was entitled, the Labour Court may be pleased to inquire into the application and determine the amount due to the applicant.
3. The petitioners filed a reply to the application aforesaid in which it was asserted by them that while it was admitted that the applicant was appointed as a coolie, he was not entitled to any payment at the scale of pay of clerk or of any arrears of the overtime or bonus as such. The applicant had already been paid in the scale of coolie and all the benefits to which he was entitled in that category. In paragraph 10 of the reply, it was asserted that the applicant had approached the conciliation machinery of the U. P. Labour Department for claiming designation of a clerk in the C. B. case while in the next paragraph it was said that the claim made by the applicant was not maintainable under Section 33C(2) of Act.
4. By an order dated November 6, 1975 (Annexure 5 to the writ petition), the second respondent held, as a decision on a preliminary issue, that the application made by the first respondent was maintainable under Section 33C(2) as was held by the Kerala High Court in its decision reported in 1973-II L.L.J. 46. It then permitted the parties to adduce evidence and on consideration thereof passed the final order on April 30, 1977.
5. It has been urged on behalf of the petitioners that having regard to the nature of the controversy which was to be determined before an order for payment of any amount could be made by the second respondent, the case could not be dealt with under Section 33C(2) of the Act and that the I determination could, if at all, be sought by the first respondent of his categorisation as a clerk and entitlement of consequential scale of pay and other benefits only through the adjudicatory process under Section 4K of the U. P. Industrial Disputes Act. For the first respondent, however, it has been urged that the determination made by the second respondent of the performance by the first respondent of the duties of a clerk during the relevant period was nothing more than determination of a matter incidental to the claim of the first respondent of being entitled to the amount claimed by him from the petitioners for that period and was well within its jurisdiction in the proceedings before the second respondent. It has been stressed on behalf of the first respondent by his learned Counsel that the decision of the second respondent did not enable the first respondent to claim categorisation as a clerk or consequential benefits upon such categorisation and that it was confined to the money to which he was entitled for the duties performed by him during the period between April, 1971 to October, 1974. Reliance has been placed by the learned Counsel for the parties upon a number of decided cases.
6. In the Central Bank of India Ltd. v. P.S. Rajagopalan, etc. 1963-II L.L.J. 89, the scope of Section 33 C (1) came to be considered by the Supreme Court. The Supreme Court observed:
Let us then revert to the words used in Section 33 C (2) in order to decide what would be its true scope and effect on a fair and reasonable construction.... In our opinion, on a fair and reasonable construction of Sub-section (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 benefits 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 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 that 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 the point in favour of the workman that the next question of making necessary computation can arise.... The claim under Section 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-section (2). 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. We must accordingly hold that Section 33C(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 based is to the benefit on which their claim is disputed by their employers....
It later observed that:
In Shri Ambica Mills Co. Ltd. v. S.A. Bhatt 1961-I L.L.J. 1, Section 15 of the Payment of Wages Act, 1936 (No. 4 of 1936) fell to be construed, and it was held that under the said section, when the authority exercises its jurisdiction which is made exclusive by Section 22, it has necessarily to consider various questions incidental to the claims falling thereunder and it was added that although it would be inexpedient to lay down any hard and fast rule for determining the scope of such question care should be taken not to unduly extend or curtail its jurisdiction. As we have already indicated, we have adopted the same approach in interpreting Section 33C(2).
7. In Chief Mining Engineer, East India Coal Co. Ltd., Bararee Colliery Dhanbad v. Rameshwar and Ors. 1968-I L.L.J. 6, the Supreme Court, after referring to some earlier decisions, laid down some propositions in regard to the scope of Section 33 C (2). Amongst the eight propositions mentioned in paragraph 4 of the report, were the following propositions:
(2) ...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 Section 10(1). But having regard to the legislative policy to provide a speedy remedy to individual workmen for enforcing their existing rights, it would not be reasonable to exclude their existing right sought to be implemented by individual workman. Therefore, though in determining the scope of Section 33 C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall for instance under Section 10(1), cannot be brought under Section 33 C.
(3) Section 33 C (1) applies to cases where money is due to a workman under an award or settlement or under Chapter V-A of the Act, already calculated and ascertained 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.
(5) 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....
(8) Since proceedings under Section 33 C(2) are analogous to executive proceedings and the labour 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 33 C (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.
It then proceeded to observe that:
Is 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 and industrial workman and his employer. Since the scope of Sub-section (2) is wider than that of Sub-section (1) and the subsection is not confined to cases arising under an award, settlement or under the provisions of Chapter V-A, there is no reason to hold that a benefit provided by a statute or a scheme made thereunder, without there being anything contrary under such statute or Section 33C(2) cannot fall within Sub-section (2) Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 which remains to be computed must fall under Sub-section (2) and the Labour Court, therefore, had jurisdiction to entertain and try such a claim, it being a claim, in respect of an existing right arising from the relationship of an industrial workman and his employer. The contention that the Labour Court had no jurisdiction because the claim were under the said scheme or because the benefit was monetary or because it involved any substantial question between the company and the workman must, in view of the said decisions fail.
8. In that case, the Supreme Court was called upon to judge the validity of an order passed by the Labour Court, inter alia, directing payment of bonus under the aforesaid scheme to some employees of the petitioner - company. The scheme contemplated that an employee would not be entitled to bonus for the period during which he was employed as mali, sweeper or domestic servant on domestic or personal work. The company was relying upon the exception in case of the workman whose cases had been examined by the Supreme Court. The Labour Court, which had directed payment of bonus, had concluded on evidence led before it that the workmen were engaged in supplying water at certain point in the colliery and held, therefore, that the exception was not applicable in their case. The Supreme Court upheld the order of the Tribunal. It looked into the evidence of the witnesses examined by the company before the Labour Court and observed that it was clear from their evidence that the company had failed to establish either that the respondent-workmen were employed as domestic servants or that they were exclusively engaged on domestic or personal work.
9. In Central Inland Water Transport Corporation Ltd, v. The Workman and Anr. : 1SCR153 Palekar, J., speaking for the Court, observed fin paragraphs 12 and 13) as follows:
12. It is now well - settled that a proceeding under Section 33 C (2) is a proceeding, 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 the benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Chief Mining Engineer, East [India Coal Co. Ltd. v. Rameshwar 1968-I L.L.J. 6], it was reiterated that 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 workmen is in such cases in the position of an executing Court. 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 workman and his employer.
13. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the termination of (i) the plaintiff's right to relief, (ii) the corresponding liability of the defendant, including whether the defendant is, at all, liable or not, and (iii) the extent of the defendant's liability, if any, the working out of such liability with a view to relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determination under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 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 Section 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. Therefore, when a claim is made before the Labour Court under Section 33C(2) that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions...say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'incidental' to its main business of computation. In such cases determinations (i) and (ii) are not incidental to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal, It was, therefore, held in State Bank of Bikaner and Jaipur v. R.L. Khandelwal 1968-II L.L.J. 589, that a workman cannot put forward a claim in an application under Section 33C(2) 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 which requires a reference under Section 10 of the Act.
10. Dealing with the earlier decision of the Supreme Court in the case of Central Bank of India, it was observed by him in paragraph 14 of the report that:
The scope of Section 33C(2) was illustrated by this Court in Central Bank of India Ltd. v. P.S. Rajagopalan 1968-II L.L.J. 589. Under the Shastri Award Bank clerks operating the adding machine were declared to be entitled to a special allowance of Rs. 10 per month. Four clerks made a claim for computation before the Labour Court. The Bank denied the claim that the clerks came within the category referred to in the award and further contended that the Labour Court under Section 33C(2) had no jurisdiction to determine whether the clerks came within that category or not. Rejecting the contention, this Court held that the enquiry as to whether the 4 clerks came within that category was purely incidental and necessary to enable the Labour Court to give the relief asked for and, therefore, the Court had jurisdiction to enquire whether the clerks answered the description of the Award, which not only declared the right but also the corresponding liability of the Employer-Bank. This was purely a case of establishing the identity of the claimants as coming within a distinct category of clerks in default of which it would have been impossible to give relief anybody falling in the category. When the Award mentioned the category, it as good as named everyone who was covered by the citegory and hence the enquiry which was necessary, became limited only to the clerks' identity and did not extend either to a new investigation as to their rights or the Bank's liability to them. Both the later had been declared and provided for in the Award and the Labour Court did not have to investigate the same. Essentially, therefore, the assay of the Labour Court was in the nature of a function of a Court in execution proceedings and hence it was held that the Labour Court had jurisdiction to determine by an incidental enquiry whether the 4 clerks came in the category which was entitled to the special allowance.
11. In the Jhagrakhan Collieries (P) Ltd. v. G.C. Agrawal Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Jabalpur and Ors. 1975-I L.L.J. 163, it was observed that:.The scope of Section 33 C (2) is not the same as that of Section 10(1) of the Act. In East India Coal Co. Ltd. Benares Colliery, Dhanbad v. Rameshwar 1968-I L.L.J. 6, this Court held that although the scope of Sec ion 33 C (2) is wider than that of Section 33 C (1) cases which would appropriately be adjudicated under Section 10(1) are outside the purview of Section 33C(2). The provisions of Section 33C are, broadly speaking, in the nature of executing provisions.
12. In Central Bank of India v. Sisir Kumar Shaw 1976-I L.L.J. 90, it was held by the Supreme Court that it was open to the Labour Court under Section 33C(2) to interpret the terms of a bipartite agreement between the employer and the employee for purposes of determining whether the workman concerned was entitled to the special allowance as admissible to special assistants. On evidence, the Labour Court had found that the workman concerned, who was employed as a clerk and was performing the duties of the Clearing House representative on behalf of the Bank was performing the duties listed in respect of the category of special assistants. Referring to the relevant paragraphs of the bipartite agreement, the Supreme Court came to the conclusion that it was obvious that all workmen were entitled to special allowance provided they discharged certain additional duties and functions requiring greater skill responsibility over and above the routine duties and functions of a workman in the same cadre mentioned in Appendix B and took the view that the fact that the respondent was not called a Special Assistant did not make any difference to the situation.
13. In Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand and Anr. etc. 1978-II L.L.J. 1, Bhagwati, J , speaking for the Court, observed inter alia, as under:.It is now well-settled as a result of several decisions of this Court that a proceeding under Section 33 C (2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from his employer or if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. But the right to the money 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 relationship between the Industrial workman, and his employer, Vide Chief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar (supra). It is not competent to the Labour Court exercising jurisdiction under Section 33 C (2; to arrogate to itself the functions of an Industrial Tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject-matter of an industrial dispute in a reference under Section 10 of the Act....
14. The legal position about the scope of Section 33C(2) of the Act seems to be this: The Labour Court is called upon to compute in terms of money a benefit to which a workman is entitled on the basis on a preexisting right which is already adjudicated upon or provided for and arises in the course of or in relation to the relationship between the workman and his employer. Incidental matters can be inquired into by the Labour Court for such computation. It is not entitled, however, to investigate that the plaintiff had a right to the relief claimed or that the defendant had corresponding obligation. In other words, where it has to be determined whether the workman had a right to the relief claimed by him, then such determination cannot be made as a matter incidental to the computation of the benefit claimed by him. That determination is left to be made up by the adjudicatory process.
15. In the present case, it was not in dispute that the first respondent was employed as a coolie by the petitioner. What was being claimed by the first respondent was that on account of the work actually taken from him by the petitioner, he was entitled to the emoluments as a clerk in the scale of that category. The petitioner seriously disputed the right of the first respondent of receiving emoluments of the category of clerks, and pointed out in its reply to the application made by the first respondent before the Labour Court that the first respondent had already approached the conciliation machinery for being designated as a clerk. Further, that being a coolie he was entitled to emoluments only of the grade of that post. It is thus clear that the right of the first respondent to claim emoluments of the higher grade on the, footing that he was entitled to the clerical scale of emoluments as he had functioned as one was under serious challenge. Obviously, it was not a case whether relief could be granted to the first respondent without determining that he bad a right to the emoluments of a clerk even though he admittedly was employed as a coolie. It was not a case in which there was any pre-recognised right of the first respondent to be able to claim emoluments of the clerical scale on the mere proof of the fact that he had performed the duties of a clerk for the period of the claim. Before the first respondent could claim computation of the monetary benefit to him for having performed the duties of a clerk, it bad to be founded in his favour, in the first instance, that he had a right to make that claim or that the petitioner was under a legal obligation to extend that benefit to him for that period. This could only be determined in appropriation adjudication proceedings and could not be assumed by the Labour Court.
16. Even on the record of the present proceedings, there is nothing from which it may be inferred that the first respondent had a right to receive, or the petitioner was under an obligation to pay to the first respondent, emoluments as a clerk for the period during which he performed duties of a clerk. There is nothing about it in the order passed by the Labour Court too. The Labour Court has proceeded on the sole basis that inasmuch as, the first respondent performed the duties of a clerk during the period in question, he was entitled to emoluments as such.
17. In J. K. . v. State of Uttar Pradesh Special Appeal No. 98 of 1974, decided on October 30, 1974, the workmen-respondents in this Court claimed that they were entitled to be paid emoluments as clerks. The employer pleaded that they had been recruited as apprentices and had worked throughout the relevant period as such. The Labour Court, in proceedings under Section 33C(2) of the Act, directed payment of emoluments of clerks to these respondents. That order was upheld by this Court. The Bench, which decided the special appeal, observed, inter alia, thus ;
The Labour Court considered all these circumstances and evidence relied upon by the appellant and then recorded finding against the appellant-company that in reality and as matter of fact these contesting workmen were recruited as regular clerks in contradiction to apprentices from the very beginning...that the appellant company was in fact taking the work of regular clerks from the contesting respondents and was not treating them as apprentices....
18. It is obvious that the workmen were claiming a right to emoluments as clerks on the plea that they had been recruited as clerks and had, throughout the relevant period, worked as such- They had based their claim for benefit on an existing right of being employed as clerks in the company and, in consequence, being entitled to emoluments of that post. In such a case, it is clear that on the finding that they had been employed as clerks, the workmen could claim emoluments on that basis which could be computed by the Labour Court under Section 33C(2) of the Act. The present case has no similarity to the one which was before the Division Bench.
19. The Labour Court clearly fell in error in directing the petitioner to pay emoluments of a clerk to the first respondent in proceedings under Section 33C(2) of the Act, without any pre-determination of the question that the first respondent had the right to be so paid, on the mere proof of the fact that he had performed the duties of a clerk during certain period. Without there being a finding about the pre-existing right of the first respondent to such emoluments or of a corresponding obligation upon the petitioners in that regard, no direction, of the nature made by the Labour Court in the instant case, could be given by it. Its order is not sustainable in law and deserves to be set aside.
20. In consequence, the petition succeeds and is allowed. The order (Annexure 1 to the writ petition) is quashed. The parties shall, however, bear their own costs.