S.K. Kapur, J.
1. The present writ petition is directed against the order of the presiding officer, labour court, Delhi, made on the application of Tapeshwari Dass, respondent 2, under Section 33C(2) of the Industrial Disputes Act against the petitioner. On 20 December 1963, Tapeshwarl Daas (hereafter referred to as respondent) made the aforesaid application claiming that he had been In employ of Sher Singh & Sons, of which Sher Singh (hereafter referred to as the petitioner), is alleged to be the sole proprietor. The respondent farther claimed In his application that ha had been In the employment since April 1933 and his wages were Es. 250 per mensem. Ha alleged that the management closed the establishment in the month of August without any notice to the applicant and the petitioner had failed to pay the dues as required under Section 25FFF of the Industrial Disputes Act, 1947. The respondent) therefore, claimed Re. 3,375 as under:
(1) Retrenchment compensation at the rate of 15 days' wages per mensem for 26 years' service-Rs. 3,125.
(2) Notice-pay for one month-Rs. 250.
2. On these facts the respondent prayed in MB application under Section 330(2) that the Court may compute the amount due to him. The petitioner was called upon to file a reply In which he, inter alia, stated as under:
(1) The relationship of employer and workman never existed between the parties and the labour court had no jurisdiction to proceed on merits without declding this issue.
(2) The surrendering of the possession of the shop to the landlord due to forced unemployment cannot be termed as 'closing down of the undertaking' within the meaning of Section 25FFF of the Industrial Disputes Act, 1947.
(3) Tapeshwari Dass was not entitled to any benefits from Sher Singh which could be computed in terms of money by the labour Court. The petitioner was a goldsmith by profession and was working as die-cutter under the name and style of Sher Singh Varma in a rented premises at Nai Sarak, Delhi. He carried on his work without the help of any employee.
(4) Tapeshwari Dass who was a man of equal status and skill merely helped Sher Singh as a co-worker and used to perform the job work entrusted to him by the petitioner on contract basis as an Independent contractor. Whenever there was some surplus work with Sher Singh he used to pans it on to Tapeshwarl Dass as well as other goldsmiths for completion and such goldsmith Including Tapashwari Dass ware paid for the job done. According to the petitioner, the relationship of employer and workman never existed between the parties. The petitioner also stated that he was left without any work with effect from 10 January 1663, due to the gold control policy of the Government of India and he, therefore, surrendered the possession of the premises after obtaining a certificate of being a bona fide displaced goldsmith from the Deputy Commissioner, Delhi.
(5) Tapeshwari Dasa had also stolen Rs. 2,500 and a gold tagari on 9 September 1963, belonging to Sher Singh and ho had already lodged a report with the police.
3. On the above facts, the labour Court framed the following three issues:
(1) Was applicant a 'workman' as defined in the Industrial Disputes Act? Did the relationship of master and servant exist between parties If so, what was his salary ?
(2) Was the business closed on account of unavoidable circumstances beyond the control of employer If so, its effect ?
(3) To what benefits, if any, is applicant entitled ?
4. The labour court came to the conclusion that
(a) Tapeshwari Dass was entitled to make an application under Section 33G(2) of the Industrial Disputes Act;
(b) closure of business by the petitioner was due to the causes beyond his control and Tapeshwari Dass was, therefore, entitled only to three months' wages as retirement compensation; and
(c) Tapeshwari Dass was drawing a salary of Rs. 250 and, therefore, he was entitled to Rs. 750.
5. Sri D. D. Sharma, the learned Counsel for the petitioner, has assailed the order of the labour court on the ground that the labour court had no jurisdiction to award the relief. Ha Says that if the respondent's claim is on account of money due to him under the provisions of Chap. V-A, his remedy is to make an application to the appropriate Government for the recovery of the money. If, on the other hand, there is a dispute about the existence of relationship of employer and employee the respondent can raise an Indus trial dispute bat not claim the amount under Section 33C(2). He does not dispute that the word 'benefit' under the said provision ii not confined merely to non-monetary benefit which could be converted in terms of money and agrees that the section embraces benefit its whether monetary or non-monetary to which a workman may be entitled. Sri Sharma also does not dispute that in view of the decision of their lordships of the Supreme Court in Central Bank of India, Ltd, v. P.S. Rajagopalan 1983-II L.L.J. 89 the scope of Section 330 (2) Is wider than the scope of Section 33C(1) and the claims not based on settlements, awards or made under the provisions of shop. V-A may in certain circumstances be competent under Section 330 (2). His submission in short is that the dispute as to whether the relationship of employer and employee exists or whether he is entitled to any wages does not fall to be determined under Section 33C(2), though It may be open to the employee to raise an Industrial dispute. He strongly relies on the following observations of their lordships of the Supreme Court In Central Bank case 1963-II L.L.J. 89 (vide supra) at pp. 96-97:. It is unnecessary In the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under Section 33C(2). There Is no doubt that the three categories of claims mentioned in Section 33C(1) fall under Section 33C(2) and, in that sense, Section 33C(2) can itself be deemed to be a kind of execution proceeding; but It is possible that claims not based on settlements, awards or made under the provisions of chap. V-A, may also be competent under Section 33C(2) and that may Illustrate its wider scope. We would, however, like to Indicate some of the claims which would not fall under Section 83C (2), because they formed the subject-matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, It would not be open to him to make a claim for the recovery of his salary or wages under Section 33C(2). His demotion or dismissal may give rise to an Industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre-existing contract, cannot be made under Section 33C(2) ...
6. Sri A. K. Jain, on the other hand, submits that the question whether such relationship exists or not is incidental to the claim for computation of benefits and is, therefore, within the scope of Section 33C(2). He says that merely because the employer has disputed the existence of such relationship cannot oust the jurisdiction of the labour Court. He relies on the following observations of their lordships of the Supreme Court in Central Bank case 1963-II L.L.J. 89 at 95 (vide supra);. 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-section (2), because he has merely to raise an objection on the ground that the right claimed by the workman Is not admitted to oust the jurisdiction of the labour court to entertain the workman's application. The claim under Section 330 (2) clearly postulates that the determination of the question about computing the benefit in terms of money may, In some oases, 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) ...
Sri Jain has also relied on the decision of the Bombay High Court in Ramkrtshna Ramnath Bidi Manufacturing, Kamptee v. Labour Court, Nagpur 1963-I L.L.J. 417. I must confess that the point is not free from difficulty. After the pronouncement of the Supreme Court in Central Bank case 1963-II L.L.J. 89 (vide supra) it is clear that the scope of Section 33C(2) is wider than Section 33C (1) and that the expression 'benefit' referred to therein Includes both monetary and non-monetary benefits. The troublesome question, however. Is for which benefits and on whose instance the said provision can be Invoked. No doubt it Is true that the employer by merely denying the right of the employee to claim benefit cannot oust the jurisdiction of the Court under Section 33C(2). But, before that aspect can be permitted to affect the mind, one has to see the scope and ambit of the section Itself. 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 workmen and employer is Itself In dispute, the matter would fall under Section 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 Section 33C(2) is primarily given power to execute or Implement his existing Individual right and It may, therefore, be necessary In some oases 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, in my opinion, be Incidental to the determination of the main question. It is said that the reasons which Impelled the Supreme Court to hold that the labour court has enquire Into the existence of a right folly apply to the determination of the question about the existence of the relationship of master and servant and an employer cannot be permitted to oust the Jurisdiction of the labour court by merely raising a dispute that the claimant is not an employee at all. In my opinion, there is vast difference between the two. In the former, the relationship of master and servant Is admitted and the Court has then to consider whether or not an employee Is entitled to the benefit claimed and If so, what are those benefits. In the other category of oases the dispute centers round the point whether the claimant is a workman at all. If the respondent's contention be upheld, then most of the Industrial disputes could fall under Section 33C(2) and the provisions of Section 10 would, at least to a considerable extent, be reduced to silence. I am, therefore, of the opinion that the labour Court acted without Jurisdiction In deciding the Issue as to the existence of relationship of master and servant. I am not unmindful of the fact that this point was not raised by the petitioner before the labour court but since the point goes to the root of the whole matter and relates to the Jurisdiction of the labour Court, I allowed the petitioner to raise this question.
7. In the result, the petition succeeds and is allowed. The Impugned order of the labour Court is quashed but there will be no order as to costs.