M.P. Thakkar, C.J.
1. Enter through the door marked '10(1)' and not through the door marked '33C', says the Labour Court, whilst rejecting the recovery application made by an employee who complains of that though he is in fact doing the work (for which a higher pay scale is agreed upon) he is not paid on that basis by the employer. It is common ground that the very Labour Court would have jurisdiction if a reference was made under Section 10(1) of the Industrial Disputes Act, 1947 (I. D. Act) inasmuch as the number of employees is less than 100. It is, however, the view of the Labour Court that it cannot do so in exercise of powers under Section 33C(2) in the absence of a reference under Section 10(1). Can the jurisdiction of the Labour Court under Section 33C(2) of the I.D. Act be ousted merely by denying that he is doing such work? Can he be obliged to apply to the State Government to make a reference under Section 10(1) of the I.D. Act on the premise that an industrial dispute exists or is apprehended? Is the jurisdiction of the Labour Court under Section 33C ousted on any of the following grounds?
(1) It involves creation of a new right and not enforcement of an existing right and the Labour Court cannot exercise jurisdiction under Section 33C(2)on that account.
(2) It is a collective dispute which can be resolved only by seeking a reference under Section 10(1) and not by invoking powers under Section 33C. This submission is urged in the context of the fact that 58 other workmen have filed similar recovery applications which are still pending in the Labour Court.
(3) It is a dispute relating to classification or categorisation which Labour Court can resolve only in the context of a reference under Section 10(1) and not in a proceeding under Section 33C.
These are the questions which confront us in this petition under Article 227 of the Constitution which has been instituted in the background of facts recounted hereinbelow.
2. The facts are not in dispute. An industrial dispute had arisen between the respondent, Indian Farmers Fertiliser Co-operative Limited, Kalol Unit, hereinafter referred to as the 'employer', and its employees. The dispute was settled and a settlement was arrived at in the course of conciliation proceedings before the Conciliation Officer under Section 12(3) of the Industrial Disputes Act on July 5, 1975 which was made effective retrospectively from January 1, 1973. Clause 3.0 of the terms of settlement provided as under:
'3.0. Revision of Pay Scales-Demand No. 1 of the Charter of demands: 3. 1 As a consequence of the Third Pay Commission's recommendations as accepted by the Government of India, the situation in respect of basic salary and Dearness Allowance has changed qualitatively. While IFFCO has been following the Central Government actions so far, in the matter of interim relief and Dearness Allowance, the substantial changes introduced by the Third Pay Commission has necessitated a fresh look at the Basic pay structure and other allowances. In pursuance of the above, the pay-scales of the workmen in the present scales of pay have been revised to the scales as shown against each below:Present Scales Proposed Scales(M) 80-5-130 Rs. 210-8-314 (except for SecurityGuards. Conveyor Attendant, FireGuards, Poin-tsmen, Bag Stitchers,Sample Collectors, Bag Fillers, Storeman).(LI) 80-5-130 Rs. 225-9-333 (for Security Guards,Fire Guards, Conveyor Attendant, Pointsmen, Bag Stitchers, Sample Collectors, Bag Fillers, Storeman).xxx xxx xxx xxx
The petitioner is a member of the Union, namely, IFFCO Karmachari Sangh, Kalol. It is his case that as per the agreement he falls in the category to which the pay-scale of Rs. 225-9-333 is applicable as per the settlement and yet he is being paid as per the pay scale for the lower category which carries the pay scale of Rs. 210-8-314. On these premises he instituted a Recovery Application under Section 33C(2) which has given rise to the present petition on July 12, 1979. The Labour Court took the view that it had no jurisdiction in exercise of powers under Section 33C(2) to grant the relief prayed for by the petitioner substantially on the ground that the relief claimed by him was not based on an existing right. The view taken was that the petitioner should raise an Industrial Dispute and seek a reference under Section 10(1) of the Industrial Disputes Act rather than invoke the jurisdiction of the Labour Court under Section 33C(2). Thereupon the petitioner has approached this Court by way of the present petition under Article 227 of the Constitution of India.
3. It is the case of the petitioner that he is assigned the work of & Conveyor Attendant, of a Bag Stitcher, of a Bag Filler and of a Pointsman. Reliance is placed on the Memorandum of settlement as per Annexure 'B' wherein it is agreed that such of the employees who are doing the work as Conveyor Attendants, Bag Stitchers and Bag Fillers etc. fall within category (LI) and the pay-scale applicable will be 225-9-333. The employer resisted the application inter alia on the ground that the Labour Court had no jurisdiction. In so far as the averment in regard to the nature of the duties performed by the petitioner was concerned, there was a half-hearted and vague denial in paragraph 4 of the written statement. It was denied that the applicant was discharging the duties 'solely' and 'continuously' of Conveyor Attendant, Bag Stitcher and Bag Filler and Pointsman 'from the date of his joining.' It was stated that the applicant had been posted as Mazdoor in Bagging and Material Handling Department. Two salient features must be highlighted: (1) It is not contended that the petitioner is not doing the work as Conveyor Attendant/Bag Stitcher/Bag Filler or Pointsman at all. (2) What is contended is that the applicant has not been 'continuously' discharging such duties. It would mean that the fact that the petitioner was discharging such duties for some time is not disputed. What is disputed is that he was 'continuously' discharging such duties without interruption. (3) It is stated that these were not the only duties that he was discharging but he was also discharging some other duties. (4) That he was not discharging these duties from the date of his joining meaning thereby that he was discharging these duties with effect from some later date. Now admittedly as per the agreement if the petitioner was discharging duties as a Conveyor Attendant, Bag Stitcher, Bag Filler or Pointsman, he was entitled to be placed in the pay scale as specified in category (LI) carrying the pay scale of Rs. 225-9-333. He is, however, placed in the pay scale referable to category carrying the pay scale of Rs. 210-8-315.
4. In the backdrop of the aforesaid facts the question as regards jurisdiction has arisen. As indicated earlier, the Labour Court has upheld the plea of the respondent employer that the application made by the employee is not maintainable under Section 33C(2) and that the only remedy available to the employee in order to claim the relief which he has claimed by way of the application giving rise to the present petition is to seek a reference to a Labour Court or Industrial Tribunal under Section 10(1) of the Industrial Disputes Act. It may be stated that since the dispute concerns less than 100 employees, if the appropriate Government (in this case the State Government) is of the opinion that an industrial dispute exists or is apprehended, it may by order in writing refer it to a Labour Court (if the number of employees exceeds 100, the reference would have had to be made to the Industrial Tribunal) (see Section 10(1)) in order to establish the right to claim the pay scales which according to the employee he is entitled to.
5. It is the case of the respondent employer that what the employee wants to establish is a new right and, therefore, the employee will have to make a recourse to Section 10A and seek a reference to the Labour Court in order to establish the right claimed by him. The Labour Court exercising jurisdiction under Section 33C(2) will have no jurisdiction to entertain an application having regard to the fact that jurisdiction under the said provision can be exercised only provided the basis of the claim is an existing right. In substance the argument is that the Labour Court exercising jurisdiction under Section 33C(2) acts virtually as an executing Court. If there is an existing right either under a statute or under an award rendered by the Labour Court or an Industrial Tribunal which is binding to the parties and the employee is deprived of money or any benefit under such award or agreement, he can invoke the jurisdiction under Section 33C(2). If on the other hand there is no existing right in the employee either under a statute or under an award which is binding to the parties but it is a matter where the right of an employee to claim money or any benefit of the aforesaid nature has to be established for the first time, the Labour Court will have to adjudicate on the question whether or not the employee is entitled to such a money or benefit. And this can be done only by the Labour Court whilst exercising jurisdiction under Section 10A in case a reference is made to the Labour Court. In a proceeding under Section 33C(2) it is so argued the Labour Court would not be competent to do so. The next ground urged in support of the plea is that whilst exercising jurisdiction under Section 33C(2) the Labour Court cannot adjudicate upon a dispute pertaining to categorisation of the workman or a dispute as regards their fitment in a pay scale. The work of categorisation has to be done .by the Labour Court or the Industrial Tribunal as the case may be in exercise of jurisdiction under Section 10(1) and not by the Labour Court exercising jurisdiction analogous to the jurisdiction exercised by the Court executing a decree in the course of a proceeding under Section 33C(2).
6. Now, the question regarding the maintainability of an application under Section 33C(2) has come up for consideration before the Supreme Court in a number of matters (see Central Bank of India v. Rajagopalan : (1963)IILLJ89SC , East India Coal Co. v. Rameshwar : (1968)ILLJ6SC , Central Inland Water Transport Corporation Ltd. v. The Workmen : 1SCR153 , and Central Bank of India v. Sirir Kumar Shah : (1976)ILLJ90SC . The broad propositions which emerge from the aforesaid decisions may be formulated as under:
(1) A proceeding under Section 33C(2) is by and large analogous to an execution proceeding in a Civil Court in the sense that the Labour Court will not create a right for the first time or confer a right for the first time in the course of such a proceeding. It will only proceed to recover the money or the benefit which is capable of being computed in terms of money in case the right is existing right which has merely to be given effect to. (see Central Inland Water Transport Corporation Ltd. v. The Workmen : 1SCR153 ).
(2) Whilst exercising Jurisdiction under Section 33C(2) the Labour Court is not restricted merely to the making of an arithmatical computation of the money claim or the benefit which is capable of being computed in terms of money. The Labour Court has also the jurisdiction to decide incidental questions which are necessary in order to make the provision effective and enable the workers to effectively recover the money or the benefit or the money equivalent of the benefit. And the Labour Court will have the jurisdiction to decide ancillary matters if necessary by recording evidence with this end in view (see Central Inland Water Transport Corporation Ltd. v. The Workmen : 1SCR153 ).
(3) The jurisdiction of the Labour Court will not be lost merely because the employer resists the claim or denies the existence of the right claimed by the employees. For the purpose of jurisdiction, the matter will be governed by the assertion of the claim by the applicants subject to their being able to make good their claim. In other words, their application will not be thrown out at the threshold merely because the employers say that there is no existing right or that the employees are not entitled to make such a claim. If ultimately at the conclusion of the proceedings the Labour Court reaches the conclusion that there is no existing right or that the workmen are not entitled to the claim, the application would of course be rejected (see Central Bank of India v. Rajagopalan : (1963)IILLJ89SC , & U.P. Electric Supply Co. Ltd. v. R.K. Shukla : (1969)IILLJ728SC ).
(4) If a dispute is a collective dispute involving collective bargaining, it would fall under Section 10(1) and not under Section 33C(2) (see Central Bank of India v. Rajagopalan : (1963)IILLJ89SC .)
(5) The Labour Court in exercise of powers under Section 33C(2) can interpret a bipartite agreement (see East India Coal Co. v. Rameshwar A.I.R. 1963 Supreme Court 218 & Central Bank of India v. Sirir Kumar Shah : (1976)ILLJ90SC ).
7. The main controversy centers round the question as to whether the employee is seeking to recover money or benefit by virtue of an existing right or whether under the guise of seeking enforcement of an existing right, he wants the Labour Court to create a right in his favour for the first time. The submission urged on behalf of the respondent employer, which has found favour with the Labour Court, is that in essence what the employee is seeking by way of the application giving rise to the present petition is to invite the Labour Court to create a new right in his favour for the first time and that it is not an application for enforcement of an existing right.
Does the petitioner seek to establish a new right or the mere enforcement of an existing right?
8. In our opinion, the submission that the petitioner seeks to establish a new right is altogether misconceived. Admittedly the pay scales attached to workmen discharging the functions as Bag Stitchers, Bag Fillers etc. have already been determined by the agreement arrived at by consent. The petitioner merely seeks enforcement of this right which is denied to him on the basis that he is not discharging duties in such a capacity. The dispute, therefore, is limited to the controversy ranging around the factual issue as to whether or not the petitioner is discharging duties in such capacity. There is no question of seeking to establish a new right. Counsel for the employer Company, however, argues that this is really speaking a dispute regarding classification which can be resolved only by a Labour Court or Industrial Tribunal to which a dispute is referred under Section 10(1)(c).
Is it a dispute pertaining to classification?
9. This submission is built on the premise that what the Labour Court is being invited to do is to categorise the workmen who are entitled to the higher pay-scale applicable to Bag Stitchers, Bag Fillers, Pointsmen etc. specified in category (LI). Now, in our opinion, this submission is altogether misconceived. The Labour Court is not at all required to undertake the task of categorisation or classification. Classification would involve determination of a number of questions. First, it may be necessary to categorise the workmen into skilled, semi-skilled or unskilled workmen depending on the nature of the duties performed by them. It may also become necessary to evolve different categories carrying different pay-scales from the perspective of the nature of the duties performed by the workmen. The payscales will then have to be determined depending on the nature of the work done and the respective payscales which the category should carry having regard to relevant factors such as (1) relative importance of the functions discharged, (2) the relative skill necessary in order to perform the functions, (3) the nature of classification carrying a corresponding pay scale prevailing in similar industries, or in the same industry in the same region. And several other questions of principle of like nature. In the present case the Labour Court is not required to undertake this function at all. In fact the task of classification has already been completed by the parties by virtue of the settlement arrived at in the course of conciliation proceedings under Section 12(3) on July 5, 1975 which was made effective retrospectively from January 1, 1973 as indicated in the earlier part of the judgment. We have already produced the relevant part. Inter alia by consent two categories have been evolved viz. category (M) and category (LI). Previously both the categories carried the same payscale of Rs. 80-5-130. By virtue of the settlement between the parties category (M) carriers the lower payscale of Rs. 210-8-314 whereas category (LI) carries a higher payscale of Rs. 225-9-333. And in terms it is specified that the higher payscale attached to category (LI) will be applicable to Security Guards, Fire Guards, Conveyor Attendant, Pointsman, Bag Stitchers, Sample Collectors, Bag Fillers and Storeman. The persons discharging the aforesaid functions and doing the work of the aforesaid category will fall in category (LI) and will be entitled to the higher payscales. The workmen who are not discharging any of the functions in respect of the aforesaid posts will fall in the residuary category viz. category (M) carrying a lower payscale. There is, therefore, no question of categorisation involved. What the petitioner employee contends is that in fact he is discharging the functions in respect of posts which fall in the first category viz. Bag Stitchers, Bag fillers etc. No doubt the other side disputes that he is discharging these functions. In fact that is the reason why the employer refuses to pay to the workman concerned salary in accordance with the aforesaid higher payscale. The dispute, therefore, centres round the sole question as to whether or not they are discharging the functions of Bag Stitchers, Bag fillers. Pointsman etc. which fall within the specified posts falling under category (LI). In other words, according to the employees, though they are doing the work as Bag Stitchers, Bag Fillers etc., the employer says that 'you are not doing this work and, therefore, you are not entitled to the payscale attached to the said posts'. They do not say that although they are not discharging the functions attached to the aforesaid posts falling with the category carrying a higher payscale, even so they should be awarded higher payscale. If such were the contention, naturally the Labour Court would be required to adjudicate on the question as to what payscale should be awarded to them having regard to the fact that they are claiming payscales higher than those which have been awarded to them as per the settlement arrived at between the parties which is binding to them. In the present case they say that 'we are actually doing the work attached to the posts which fall within category (LI) carrying a higher payscale and by a mere denial of the fact that we are doing this work the employer has refused to us the payscale attached to that category by virtue of the settlement which is binding to the parties'. For the purposes of this petition, we are not concerned as to whether or not the assertion made by the employee is well-founded. As we pointed out earlier, the mere fact that the employer does not admit the averments made in the application or resists the claim will not oust the jurisdiction of the Labour Court under Section 33C(2). In case the employee can adduce evidence and make good his assertion which he may, can it be said that what he is seeking is to establish a new right for the first time? It appears to us impossible to contend that he is seeking to establish a new right in case he is actually doing the work as Bag Stitcher, Bag Filler etc. and all that the Labour Court has to determine on the basis of the material of evidence produced before it is whether he is in fact discharging these functions. Once the Labour Court is satisfied that he is doing this work, there can remain no controversy as to which payscale would be available to him for that is the matter which is governed by the settlement which is binding to the parties. Thus, that is the sole question which is required to be determined by the Labour Court. In order to test the validity of the plea urged on behalf of the employer, one can evolve a test is the question of this nature one which can be 'solely and exclusively' determined in a reference under Section 10(1)? The scope of Section 10(1) is very wide and questions like the present one also may be referred to the Industrial Tribunal or Labour Court under Section 10(1). It would, however, be impossible to hold that this is the only mode of resolving the dispute. It is not possible to conceive of a reference being made to the Labour Court solely in order to determine what actual work he is doing. The Labour Court would have then not to determine any question pertaining to the right of the workman or pertaining to any policy question or pertaining to any condition of service applicable to the workmen. Under Section 10(1) the Labour Court or the Industrial Tribunal, as the case may be, has the right to impose a contract on the parties or to impose conditions of service or the payscales deemed to be just on the parties. It can alter an existing agreement and impose a new agreement. It can devise categories for the workmen and decide what payscales should be awarded to the various categories of workmen from the perspective of the justness of demands and in order to eschew breach of industrial peace and in order to ensure that the workmen are treated in a just manner from the perspective of socio-economic justice. No such question is required to be decided in the present matter. The simple question that is required to be determined, is-the employee right in contending that he is factually and actually discharging the functions of Bag Stitcher, Bag Filler etc.? If the finding on this issue is in favour of the employee, the Labour Court is not required to determine any other issue. What payscale would be applicable to him is not required to be determined by the Labour Court, for, that is a matter governed by the settlement arrived at between the parties which is binding to the parties. The only task which requires to be performed is to decide the question as to whether the assertion made by the employee that he is actually discharging the functions as Bag Stitcher, Bag Filler etc. is made good on the basis of the evidence and the material produced before the Labour Court. Surely there cannot be a reference under Section 10(1) simply in order to determine this issue. It is in fact not an industrial dispute in the strict sense. The question is one of ascertaining on the basis of evidence and material as to what exact work the workman is doing simply in order to work out the existing rights as per the binding agreement. It is only for the incidental and ancillary purpose of determining the salary payable to the workman on the basis of the existing binding agreement that the inquiry is required to be undertaken. It can hardly be said that it is an industrial dispute in the larger sense which is required to be resolved on policy or principle. It would be interesting to have a quick look at the definition of 'industrial dispute' embodied in Section 2(k) of the Industrial Disputes Act. We quote:
2(k) 'industrial dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;
A dispute of the present nature involves no more than actual ascertainment of facts pertaining to the duties being discharged by the petitioner. Once it is held that he is working as a Bag Filler, Bag Stitcher, no further question remains to be decided for the payscale applicable to a workman doing that work is already agreed upon. If the petitioner shows that he is doing this work, he must succeed. If he is unable to make good his assertion, he must fail. No question of principle or policy or conferment of new rights arises at all. It is merely 'working out' of existing rights depending on the finding recorded in the context of the factual controversy as to whether or not the petitioner is doing this work. The dispute is a factual dispute as to exactly what type of work the workman is doing i.e. whether he is really doing the work which the Bag Stitchers, Bag Fillers etc. are required or supposed to do or he is doing the work which does not fall within any of these job descriptions specified in category (LI) but is one which would fall within category (M) and would, therefore, fall within the residuary category applicable to those who are discharging functions of the job descriptions specified in category (M) carrying the lower payscales. It would, thus, appear that in essence the question which requires to be resolved is a factual question which is incidental to a claim made by the employee in order to enforce and effectuate the terms and conditions of the settlement arrived at between the parties which is binding to the parties. The workman merely says this: 'there is an agreement between us (myself and other workmen on one hand and the employer on the other) by virtue of which as I am doing the work of Bag Stitcher and Bag Filler etc. I am entitled to higher payscale. I say that I am doing that work. The employer does not dispute that if I am doing mat work I am entitled to the higher payscale as per the settlement between the parties. I, therefore, seek to enforce the settlement and claim higher payscale as I am doing the work of Bag Stitcher and Bag Filler etc. In order to find out whether I am doing that work, permit me to lead evidence and make good my claim'. It is, therefore, clear that what the employee seeks is the enforcement of Ins existing right under the settlement which is binding to the parties. It cannot be said that he is inviting the Labour Court to create a new right in his favour for the first time. An employee who is actually and factually doing that work of a Bag Stitcher or Bag Filler cannot be denied the payscale attached to that category of work by saying that 'no, you are not doing that work'. Ordinarily such a dispute would not arise. But in case such a dispute arises, it is obvious that the only course open to that employee is to make recourse to Section 33C(2). By wrongly saying that the petitioner is not doing the work of Bag Stitcher, Bag Filler etc., the employer is denying to him the payscale which is applicable to him by virtue of the settlement and the money which is due to him on that account. The employee on these premises requested the Labour Court to award him the money due to him on the aforesaid basis if his claim is found to be true, by recording a finding of fact on the question as to whether or not he is actually doing the work falling in the job-description of Bag Stitcher and Bag Filler etc. He is not seeking any new payscale for Bag Stitcher or Bag Filler etc. If he was seeking a new payscale, then possibly it could have been argued that the matter was outside the scope of Section 33C(2) and is a proper subject-matter for a reference under Section 10(1). No such plea can be advanced in a case like the present one where the peculiar, unprecedented and unparalleled situation has arisen where the simple dispute is whether or not he is doing this work. Thus, it is merely an incidental or anciliary question which requires to be resolved by the Labour Court in exercise of powers under Section 33C(2) in discharging functions analogous to the functions discharged by the executing Court. The settlement between the parties can be treated as a decree which is sought to be enforced and the executing Court is merely required to determine the question as to whether as per the declaratory decree the Bag Stitchers and Bag Fillers are entitled to a particular scale and the petitioner is entitled to claim the payment having regard to the duties performed by him as Bag Stitcher, Bag Filler etc. since the employer says that 'you are not doing the work of Bag Stitcher etc.' We fail to see how it can be contended that the employee is seeking to establish a new right or is inviting the Labour Court to create a new right in his favour which does not exist today. In fact, he is seeking no more than to enforce the very existing right, which if he is right, is denied to him on the ground that he is not doing the work of Bag Stitcher, Bag Filler etc. though in fact he is so doing. We have, therefore, no hesitation in reaching the conclusion that the Labour Court has committed an error apparent on the face of the record in holding that it has no jurisdiction.
Is it a collective dispute required to be resolved under Section 10(1) of the Industrial Disputes Act?
10. So also the argument that the dispute is a collective dispute falling within the ratio of the decision in Central Bank of India v. Rajagopalan : (1963)IILLJ89SC , is devoid of any substance. The dispute in the present matter is not a collective dispute in the sense of a collective dispute raised by a number of workmen which has to be resolved by the process of collective bargaining or by adjudication on failure to arrive at a settlement in the course of the collective bargaining. It is an individual dispute pertaining to each employee who claims that he is doing the work such as the work of Bag Filler or Bag Stitcher, etc. It is an individual claim made by a particular number of individuals (59). It is not a claim collectively made by 59 persons for, the Labour Court is not required to decide whether these 59 persons are entitled collectively to any right. All that the Labour Court has to determine is whether each of the employees from out of 59 persons is really doing the work of Bag Stitcher or Bag Filler or any other job description falling within category (LI).
11. Counsel for the respondent employer has placed reliance on U.P. State Electricity Board v. Jhagreshwar Prasad 1982 Lab I.C. 284. In that case the learned single Judge of the Allahabad High Court was faced with the question whether the employee who was appointed as a coolie but had worked as a clerk during certain period could claim emoluments of a clerk from the employer under Section 33C(2) on the mere proof of the fact that he had performed the duties of clerk for some period without there being a finding about his preexisting right to such emoluments or corresponding obligation upon the employer in that regard. Our attention is called to the following passages from the said judgment:
13. The legal position about the scops 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 of a pre-existing 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 workmen 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.
14. 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 had a right to the emoluments of a clerk even though he admittedly is 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 had to be found 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 appropriate adjudication proceedings and could not be assumed by the Labour Court.
With great respect to the learned single Judge we find it difficult to agree with the view taken by him. The question is not whether he was recruited in particular category. The question is whether really speaking he was discharging the function of a higher category. We do not think that it is necessary to establish that a person doing a clerk's work is entitled to a clerk's pay as per the agreement or the award or the payscale applicable to a clerk's cadre. No new right has to be determined at all. But even assuming that the view taken in U.P. State Electricity Board's Case (supra) is correct, that decision can be distinguished on facts. In that case the recruitment was to the cadre of a coolie and he was claiming the wages of a clerk. In the present case there is no question of being recruited to a particular cadre. The existing employees were categorised in two categories viz. category (LI) and category (M). The person doing the work of Bag Stitching and Bag filling etc. were placed in category (LI). The question to be decided is who were those persons? It is not as if a person who is recruited, say as a coolie which is a job discription which does not fall within category (LI), is claiming the payscale applicable to a Bag Stitcher or a Bag Filler. It is not as if his appointment is under a different job description. Under the circumstances, the said case will not apply. In fact we find support for the view we are inclined to take from a decision of a Division Bench of the Allahabad High Court which has been referred to by the learned single Judge in U.P. State Electricity Board's case itself. The discussion made in paragraph 16 deserves to be reproduced in this context:
16. In J.K. v. State of U.P. Spl. Appeal No. 98 of 1974 decided on Oct. 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: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 a 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 f contesting respondents and was not treating them as apprentices....
12. The Division Bench came to the conclusion that in reality and as a matter of fact the appellant company was in fact taking the work of a regular clerk from the workmen concerned. The way we read the decision, the emphasis is on the finding of fact as regards what actual work was being taken from the workmen concerned. The emphasis is not on whether or not they were recruited as Clerks though as a matter of fact the the Labour Court came to the conclusion in that matter that they were also recruited as clerks. Reliance was also placed on Katta Lakshmayya v. Labour Court, Hyderabad (1966) 1 L.L.J. 813. In that case the award prescribed two scales of pay, one for 'munshi' (grade III) and another for 'munshi-in-charge' (grade II). The workman concerned who was 'munshi' (grade III) wanted to be placed in higher grade viz. grade II pertaining to 'munshi-in-charge'. It was in that case that the Andhra Pradesh High Court took the view that the application under Section 33C(2) was not maintainable. We do not think this decision lays down a principle which runs counter to the view that we are taking. Be that as it may, we are of the opinion that in the present case all the tests enunciated by the Supreme Court of India in the various judgments are satisfied. The workman is not claiming any new right. The workman is merely claiming enforcement of the existing right and invites the Labour Court to record a finding on an incidental or ancillary question as to whether or not he is discharging the functions and doing the work which he claims he is doing. The question involved is not one pertaining to any new or better conditions of service or pertaining to an industrial dispute as such. It only pertains to the interpretation of the settlement in the light of the evidence pertaining to the nature of the work done by him which is essentially a function analogous to a function discharged by the executing Court. He is not seeking any declaration of the right by virtue of the work he is doing. He only wants the enforcement of that right having regard to the fact that in fact he falls within the category to which a higher payscale is attached. The workmen does not seek a fresh adjudication in respect of a new right claimed by him. He only wants the existing right to be enforced or worked out because the employer says that he is not doing the work which according to him he is doing and there being no dispute as to in which category the workman would fall in case he is doing the work which he claims he is doing. Under the circumstances we are of the opinion that the Labour Court had jurisdiction to entertain an application under Section 33C(2) on the basis of the averments made in the application and that the application could not have been rejected at the threshold on the ground that even proceeding on the assumption that the applicant is doing the work which he claims he is doing, he is not entitled to the monetary benefits claimed by him. We may clarify that in case the Labour Court comes to the conclusion that the employee has failed to establish that he is in tact doing the work of Bag Stitcher and Bag Filler etc., the Labour Court would have the jurisdiction to reject the application on merits on the ground that the employee has failed to make good his claim. However, the Labour Court was not justified in rejecting the application at this juncture on the ground that the dispute was one which fell outside the purview of Section 33C(2).
13. We, therefore, allow the petition, quash the impugned order as per Annexure 'D' dated January 12, 1982 and remit the matter back to the Labour Court for proceeding further in accordance with law after affording an opportunity to the parties to place on record such material and/or adduce such evidence as they may desire and after giving them reasonable opportunity to make good their respective contentions. It is hoped that the Labour Court will accord priority to this matter and dispose it of in accordance with law at the earliest Rule made absolute to this extent. There will be no order regarding costs.