S. Rangarajan, J.
(1) This judgment will dispose of C.W. Nos. 390, 391 and 393 of 1972 so. It is sufficient to state the facts in C.W. 392 of 1972.
(2) The first respondent was employed in the petitioner's Mills as a Line Jobber. On 1-4-1964 a settlement was entered into between the management and the mistress Union of the petitioner's Mills providing, among other matters, for payment of gratuity to mistress. On 8-4-1964 a further settlement was entered into between the Management and the same Union wherein the categories of workmen, who were compendiously called mistress, were clearly mentioned. Line Jobbers, according to the settlement, are mistress.
(3) The first respondent (workman) was retired on 25-2-1967 on his attaining the age of superannuation and he was paid gratuity due to him in full and final settlement. After a period of nearly 4 years, namely, on or about 11-5-1971, he filed a petition under section 33-C(2) of the Industrial Disputes Act, 1947 stating that the age of retirement was not provided anywhere and that a settlement between the mistress Union on the one hand and the Management on the other was not binding on him. Reliance was placed on the fact that in respect of certain workers in textile mills in this region 20 month's basic wage as gratuity was paid, instead of 15 month's at which rate alone the workman in this case was paid. In support of this contention reliance was placed on the decision of the Supreme Court in the Delhi Cloth & General Mills Co. Ltd. v. Workmen and others (1969 Ii Labour Law Journal, 755)0. The above said dispute, which had resulted in an award of the Industrial Tribunal (I.D. Reference No. 70 of 1958) related only to workman and was stated expressly not to apply to clerical staff and mistress. It was against the award in those cases that appeals were filed by the employers, including the present petitioner-Mills, to the Supreme Court and 20 month's wages were substituted for 15 months by the Supreme Court in respect only of employees of the said Mills who were workmen but were not employed as clerical staff or as mistress.
(4) The present claim made by the workman (first respondent) is on the footing that being a workman other than a Mistri, he was entitled to gratuity calculated on the basis of 20 month's wages and not merely 15 month's wages. If the settlements between the Management and the mistress Union were to apply to the present workman (first respondent) it is common ground that having attained the age of superannuation, namely, 58 years, he would not get any further benefit since the said agreement provided for compulsory retirement of a Mistri in the service of the petitioner-Mills on his attaining the age of superannuation. It is also common ground that if the workman concerned (first respondent) was a Mistri the rate at which gratuity had to be calculated according to the decision of the Supreme Court would not apply to him.
(5) In the claim filed by the workman stress was laid on the above two aspects even though there was no express reference to the decision of the Supreme Court. Reference was, however, made in the claim to the settlement which the Management had arrived at with the mistress Union; but it was claimed that the workman was not bound by the terms of the said settlement because (a) he was not a party to the settlement and (b) that he was a Line Jobber but not a Mistri.
(6) The claim was resisted by the Management on the following grounds:
(1)that a retired workman was not a workman who was entitled to make a claim under section 33-C(2) of the Act; (2) that the petitioner having voluntarily retired and having accepted gratuity at the rate at which the mistress Union had agreed was not entitled to put forward a claim for more gratuity; (3) that the above-said settlement of the mistress Union was applicable to all the mistress and according to the said settlement itself the petitioner was a Mistri because a Jobber was included in the nomenclature 'Mistri'; and (4) that there was no law by means of which the workman would be entitled to 20 months' basic wages as gratuity.
(7) Only in the replication filed by the workman reference was made for the first time to the judgment of the Supreme Court in support of the claim for more gratuity than he was paid. It was asserted that at the time of making an application under section 33-C(2) the workman need not continue in the service of the company and that it was enough if he was a workman during the period relating to which the claim was made.
(8) The Labour Court, before whom an application winder section 33-C(2) was filed, raised a preliminary issue concerning the maintainability of the application and held that the application was maintainable. The Labour Court relied upon the decision of the Mysore High Court in The Management of Government Soap Factory, v. The Presiding officer, labour court (A. 1. R. 1970 Mysore 225) in support of the position that a retired workman could make a claim for the money due from the employer under section 33-C(2). It also relied upon certain other decisions rendered by other High Courts for the position that even those who are not actually in employment at the time when they applied under section 33-C(2) could avail themselves of that provision. The Labour Court, thereforee found that even a retired workman could apply under section 33-C(2).
(9) It was still further contended before the Labour Court that even if an application under section 33-C(2) could be made it could cover only cases where there was any pre-existing right, but would not cover a case where the dispute would properly fall under section 10(1) of the Act. In discussing this question the Labour Court thought that the workman was not asking for a gratuity scheme to be framed and gratuity being paid to him as a consequence of the same. In other words, the Labour Court observed that since the workman was asserting a right to gratuity at a particular rate the question whether he was entitled to gratuity at that rate could be gone into in an application under section 33-C(2). The Labour Court, thereforee, observed as follows:
'THEdispute mainly hinges on the point that whether the applicants are entitled to retirement gratuity as Mistres or as Line Jobbers and that whether a particular settlement or award regulates their gratuity. I think that these aspects can be gone into incidently in application under Section 33C(2) for computation of money due and that the claims are not of the nature which ought to be decided on a reference under section 10 of the I.D. Act.'
(10) The petitioner (Management) has filed this petition under Articles 226/227 of the Constitution raising the following contentions:-
(1)that the workman who only retired but was not dismissed, discharged or retrenched did not come within the definition of 'workman' under section 2(s) of the Act and hence could not apply for relief under section 33-C(2). (2) A persual of the printed record before the Supreme Court shows that both the settlements dated 1-4-1964 and 8-4-1964 were exhibited as MW.1/1 and M.W.I./2 before the Industrial Tribunal and that the Supreme Court had used the expression 'mistress' to include Jobbers also; the respondent No. 1 thereforee, could not make a claim for gratuity on the basis of what the Supreme Court had decided. (3) Since proceedings under section 33-C(2) are analogous to execution proceedings and since the workman had obtained no right or claim for gratuity either independently of the said settlement or the decision of the Supreme Court, the same could not be determined in an application under that section.
(11) Point No. (1) Reliance was placed on the definition of 'workman' under section 2(s) of the Act in support of the contention that in understanding the expression 'workman' employed in section 33-C(2) it could not be so construed as to include a workman who had retired since the said definition is confined to those who had been dismissed, discharged or retrenched. It is necessary to read section 2(s).:-
'WORKMAN'means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, etc. . . .'
(12) There seems to be no force in the petitioner's contention because the reference to dismissed, discharged or retrenched workman has been made only in the context of a proceeding under the Act in relation to an industrial dispute. Besides it is only an inclusive definition. The first part of the definition is sufficiently wide to take in any person who was employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms are express or implied. Chandrashekhar, J. speaking for a Division Bench of the Mysore High Court in Management of Government Soap Factory v. Presiding Officer (A.I.R. 1970 Mysore 225) followed the view of a Division Beach of the Madras High Court in M. Manicka Mudaliar v. Labour Court (The Indian Factories Journal, Vol. Xix 408) which had in trun confirmed the decision of a Single Judge of that Court : (1961)ILLJ729Mad . Rajamannar, C.J., speaking for the Division Bench in the Madras case, observed as follows:-
'THEfallacy in the argunment on behalf of the appellant is that section 33-C(2) expressly provides that only a 'workman' on the date of the application can make the application(sic). On the other hand, the use of the passive in that provision contemplates that the application may be made by a person, who on the date of the application was not a 'workman' as defined by the Act, but was a workman during the period in respect of which he was entitled to any benefit.'
(13) Ramachandra Iyer, J., whose decision was affirmed bythe Division Bench, went into the history of the legislation and found that the clear object was to provide for adjudication of individual claims of parsons who were not necessarily in the employment of the Management at the time they made the claim.
(14) The Supreme Court was concerned in National Building Construction Corporation Ltd. v. Pritam Singh Gill and others : 1SCR40 with the claim of a dismissed workman who had applied under section 33C(2).the argument advanced in that case was that a person who was no longer in employment at the time of the application would not fall within the said definition. Repelling the said contention Dua, J., speaking for the Supreme Court, observed as follows :
'THISsection. was enacted forthe purpose of enabling individual workman to implement, enforce or execute their existing individual rights against their employers without being compelled to have recourse to Section 10 by raising disputes and securing a reference which is obviously a lengthy process. Section 33-C ofthe Act has accordingly been described as a provision which clothesthe Labour Court with the powers similar to those of an executing Court so that the workman concerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with aforum similar tothe executing Courts it calls for a broad and beneficial construction consistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which Section 33C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without having resort to Section 10 of the Act. To accept the argument of the appellant, it would always be open to an unfair, unsympathetic and unscrupulous employer to terminate the services of his employes in order to deprive him of the benefit conferred by Section 33-C and compel him to have resort to the lengthy procedure by way of reference under Section 10 of the Act thereby defeating the very purpose and object of enacting this provision. This, in our view, quite clearly brings out the repugnancy visualised in the opening part of Section 2 of the Act and such a position could hardly have been contemplated by the legislature. In order to remove this repugnancy Section 33-C(2) must be so construed as to take within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application. In other words the term 'workman' as used in Section 33-C(2) includes all persons whose claim, requiring computation under this sub-section, is in respect of an existing right arising from his relationship as an industrial workman with his employer. By adopting this construction alone can we advance the remedy and suppress the mischief in accordance with the purpose and object of inserting Section 33-C in the Act. We are, thereforee, inclined to agree with the view taken by the Madras decision and we approve of their approach.'
(15) A number of decisions including those of Madras and Mysore were noticed by the Supreme Court; it was contended for the Management that those decisions required reconsideration on account of their having ignored the vital point in construing section 2(s), namely, that the definition of 'workman' under section 2(s) only specifically included within its fold, for the purpose of a proceeding under the Act in relation to an industrial dispute, persons who have been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or, whose dismissal, discharge or retrenchment has led to that dispute, But the Madras view was approved.
(16) The fore part of section 2(s) has defined 'workman' very widely indeed, taking within its fold 'any person employed in any industry' to do the kinds of work mentioned therein. The present respondent No. I being such a person, who was so employed, would be obviously included by that expression. I, thereforee, do not find any force in the contention of the petitioner that the expression 'workman' employed in section 33-C(2) of the Act should be so construed as not to include a workman who has retired.
(17) Point No. (2) The claim of the workman under section 33-C(2) did not specifically rely upon the Supreme Court decision. The claim for the increased .gratuity was based on what was due 'according to law.' No reference was made by the Management to the above decision of the Supreme Court in its reply to the Petition (copy of which is Annexure 'E' to the Writ Petition). It was only for the first time in the replication filed on behalf of the workman that a reference was made to the judgment of the Supreme Court fixing gratuity on the basis of 20 month's basic wage. The Management had, thereforee, no opportunity to plead anything about the decision of the Supreme Court. A perusal of the said judgment, however, shows that mistress were excluded from the scheme of gratuity with which the Supreme Court was concerned; this was obviously on account of there having been a previous settlement between the mistress Union on the one side and the Management on the other.
(18) Shri Yogeshwar Dayal, learned counsel for the petitioner, produced for my perusal the paper book, which was prepared in connection with the hearing before the Supreme Court. It is seen there from that the two settlements, which are referred to by the Management, of 1-4-1964 and 8-4-1964 had been exhibited in that case before the Industrial Tribunal as Ex. M.W.1/1 and Ex. M.W.1/2 (copies of these settlements are Annexures B and C to the present Writ Petition). Reference has also been made in the present Writ Petition to the said settlements, supported by the above two annexures which show that the expression 'mistress' included a Line Jobber like the respondent No. 1. In the return filed to this Writ Petition the point was taken that the said settlements were not binding on the respondent No. 1 the same not having been arrived at during the course of the conciliation proceedings. Reliance was placed only on the Standing Orders of the Management to show that Line Jobbers and mistress were different categories. It is important that it was not contended before the Supreme Court that when it excluded mistress, Jobbers were not excluded. Such a contention was not obviously possible in view of the two settlements, which had been placed not only before the Industrial Tribunal but also the Supreme Court. Hence it used the expression 'mistress' only in the light of the settlements between the mistress Union on the one hand and the Management on the other, treating Jobbers also as. mistress.
(19) The Labour Court has failed to focus on this crucial aspect. On the other hand the Labour Court thought that the dispute mainly hinged on the point whether the workman was entitled to retiring gratuity as a Mistri or as a Jobber. No such distinction was made by the Supreme Court between a Mistri and a Jobber in the matter of gratuity. This point has become incontrovertible by a reference to the paper book which was got ready for hearing before the Supreme Court. The paper book shows unmistakenly that the Jobbers, who were classed as mistress, were left out of that gratuity scheme. It is, thereforee, not possible for the workman to contend in this case that he is seeking to execute by way of an application under section 33-C what was decided by the Supreme Court. The workman knew perfectly well that he could not put forward such a specific case and he, thereforee, even refrained in the first instance from referring to the said decision of the Supreme Court.
(20) Point No. (3) it is now well-settled that proceedings under section 33-C(2) are analogous to execution proceedings. The observations oF Dua, J. to this effect have already been set out. The same view was stated by Shelat, J. in Chief Mining Engineer, M/s. East India Coal Co., Ltd. v. Rameshwar and others : (1968)ILLJ6SC Section 33-C(1) covers cases where money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A of the Act-'Lay off and Retrenchment'. The present workman's case does not come under section 33-C(1) of the Act because he does not claim on the basis of any settlement or under the provisions of Chapter V-A. His claim is sought to be rested on section 33-C(2), which has been held to take 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 the claim is based is disputed by their employers. Shelat, J. pointed out that it is open to the Labour Court to interpret the award or settlement on which the workman's claim rests. It was held in that case that the Labour Court had jurisdiction to entertain a claim as to whether the benefit provided under a bonus scheme made under the Coalmines Provident Fund Act and Bonus Scheme Act of 1948 which remained to be computed fell under section 33-C(2), the scope of sub-section (2) being wider than that of sub-section (1).
(21) The above decision was later referred to and explained by Shelat, J. in M/s. Voltas Lid. v. J. M. Demello and another (1971 Lab. I. C. 1171)(6) in the following manner :-
'.........PROCEEDINGSunder S. 33C(2) are analogous to execution proceedings and a Labour Court called upon to compute benefits claimed by a workman is in the position of an executing court and as such competent to interpret an award where there is a dispute as to the rights there under or as to its correct interpretation. Obviously, if the award is unambiguous, the Labour Court is bound to enforce it, it cannot make a new award by adding to or subtracting anything there from. Although it cannot go behind the award, it is nevertheless competent to construe the award where it is ambiguous and to ascertain its precise meaning, for, unless that is done, it cannot enforce the award when it is called upon to do so by an application under S. 33C. As held in Central Bank of India V. Rajagopalan, : (1963)IILLJ89SC a claim under section 33C(2) postulates that the determination of the question about computing in terms of money may in some cases have to be preceded by an inquiry into the existence of the right. Such an inquiry is incidental to the main determination assigned to the Labour Court by that sub-section. While inquiring into the question as to the existence of such a right and construing the award, the Labour Court can look into the demand by the workmen in order to ascertain whether the award under which the right is claimed was or was not beyond the scope of the demand; in other words, whether the award was within jurisdiction.'
(22) Shri Bharat Inder Singh, learned counsel for the workman, has invited my attention to a decision of Ramakrishnan, J. in Management of Kodaikanal Motor Union (P) Ltd. v. A. Nallathambi (1969 Lab. I.C. 1314 After referring to East India Coal Co. v. Rameshwar (1968 I Lab L. J. 6)(8) and some observations of Shelat, J. therein Ramakrishnan, J. observed as follows :-
'BUTthese last observations do not m;an that the jurisdiction of the Labour Court under S. 33-C(2), when a claim for payment of bonus is raised before it, is not confined to its determination only if there is an award or settlement about the bonus, and the Court cannot refuse to give a decision by making a computation, when there are ample materials from which the Court could hold, apart from the existence of an actual award or an actual settlement, that the worker has a right to be paid bonus. From this point of view, I am of the opinion that the absence of an award or settlement will not per se, exclude the jurisdiction of the Labour Court to consider the claim for the computation of bonus by the worker, and I, thereforee, overrule this objection of petitioner in this case.'
(23) That was a case where a claim for bonus was made and the principles in regard to award of bonus were regarded as fairly well settled. But it is a totally different matter where a claim of gratuity is put forward for the first time. If the decision of the Supreme Court settling a scheme for gratuity for the workmen excluded mistress (including Jobbers) and clerks of the petitioner-Mills, I do not see how such a dispute could be gone into and settled in an application under section 33-C(2), My attention has not been drawn to even a single decided case where the amount of gratuity payable independently of any settlement or award was ascertained in an enquiry under section 33-C(2). In fact Ramakrishnnan, J. himself pointed out that the Labour Court could not in an application under section 33-C(2) initiate an enquiry concerning orders for the dismissal of the original worker or embark upon an enquiry into the propriety or terms of the order of dismissal, thus constituting itself as an authority over the decision of the Management. The Labour Court has failed to address itself to this important question. The workman in this case retired nearly 4 years earlier and his claim to gratuity was also settled. The present petition under section 33-C(2) was obviously inspired by the fact that the workmen other than mistress (who included Jobbers) had got the benefit of the scheme of gratuity based on 20 months' wage, instead of 15, by reason of the decision of the Supreme Court rendered after his retirement.
(24) The main argument for the workman before me was that he was riot a party eo nominee to the settlements, which were entered into between the management and the union, of which he was not a member. Even assuming he was not a member of the union (concerning which there is no material on record), the question for consideration in the present application by the workman under section 33-C(2) is not whether the settlements as such are binding upon him but whether he can reopen (especially four years later) the settlement of his claim for gratuity by the managment which was on the basis of the two settlements in this case according to which he had to retire on the completion of 58 years and receive gratuity of 15 months basic wages. The workman in this case, or even any other Line Jobber for that matter, do not even now question the fact that they had to retire on the completion of 58 years. It seems particularly inapproprate, in such circumstances, to allow a workman to make a claim for increased gratuity under section 33-C(2) for settling that controversy. Section 33-C(2) cannot, in particular, be resorted to for the purpose of re-opening a settlement of the workman's claim to gratuity, made four years earlier, on the basis of the settlement reached between the Management and the Union, regardless of whether that particular workman was himself a member of the Union or not. It may be another matter if he made such a claim under the decision of the Supreme Court, rendered subsequent to his retirement, if the decision of the Supreme Court was applicable to him. The workman knew that the decision of the Supreme Court did not cover his case. mistress (including Jobbers) having been left out of the award, by the Supreme Court. That is why he did not even so much as refer to the decision of the Supreme Court in the petition filed by him under section 33-C(2). When it is seen that the decision of the Supreme Court did not apply to the workman in this case, there could be no question any longer of the Labour Court having to find out whether the Supreme Court's decision applies to him. After the paper book was produced for my perusal there was no serious argument on behalf of the workman that the Supreme Court's decision applied to his case. If the workman's claim for increased gratuity was made independently of the settlements reached between the Management and labour or of any award (i.e. of the above said decision of the Supreme Court) it seems obvious that his remedy cannot lie under section 33-C(2) of the Act. The order of the Labour Court directing further enquiry on the said application under section 33-C(2) is, thereforee, quashed The writ Petition is accordingly accepted and the impugned order of the second respondent is quashed. The petition ofthe workman under section 33-C(2) is dismissed. There will be no order as to costs in the circumstances.