B.N. Banerjee, J.
1. The petitioner is the proprietor of a Hindi daily newspaper known as 'Lokamanya' The respondent 4, Kailash Nath Trivedi, was a workman employed by the petitioner. The respondent 4 was discharged from his services pending the adjudication of an industrial dispute between the petitioner and his workmen. The respondent 4 made an application before the fourth industrial tribunal, under Section 33A of the Industrial Disputes Act, alleging that his discharge from service during the pending of the industrial dispute before the tribunal without obtaining previous permission of the said tribunal was illegal. He prayed for reinstatement in his former post and also for payment of his wages and other emoluments for the period of non-employment.
2. By its award which was published in the Calcutta Gazette of 14 March 1967, the fourth industrial tribunal held that the discharge of respondent 4 without previous permission from the tribunal was illegal. The tribunal, therefore, directed his reinstatement 'with all the back wages including the leave pay, if any, due to his credit.' The award of the industrial tribunal on the proceeding under Section 33A of the Industrial Disputes Act is annexure C to the petition.
3. Apparently the petitioner did not pay to respondent 4, the arrears of wages as directed by the award. Thereupon, the said respondent 4 made an application to the Assistant Secretary, Labour Department. Government of West Bengal, asking that his arrears of wages, which he calculated at Rs. 3,800 be realized for him by certificate proceedings. It is an admitted position that the Assistant Secretary, Labour Department, referred the matter contained in the application for computation by the first labour court.
4. Before the labour court, the petitioner was called upon to appear and he filed his written objection. Amongst various objections taken, one was as follows:
3. The Court has no jurisdiction to entertain the aforesaid petition and to adjudicate the same.
5. The labour court, however, held that it had jurisdiction to adjudicate in the matter.
6. Aggrieved by the decision of the labour court on the preliminary point, the petitioner moved this Court and obtained this rule.
7. Sri Arun Kumar Dutt (Sr.), learned Advocate for the petitioner, contended that inasmuch as the back wages of the petitioner awarded by the tribunal were not an ascertained sum, the State Government was not competent to issue a certificate to the Collector to recover the unascertained sum under the Public Demands Recovery Act. Nor was it entitled directly to refer the matter to a labour court for ascertainment of the money value of the benefit conferred on respondent 4 under the award. In my opinion, Sri Dutt is correct in his submission.
8. Section 33C of the Industrial Disputes Act (which was incorporated in the main Act by the amending Act 36 of 1956) is to the following effect:
33C.(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chap. VA, the workman may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue.
(2) Where any workman la entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, be determined by such labour court as may be specified in this behalf by the appropriate Government, and the amount so determined may be recovered as provided for in Sub-section (1).
(3) For the purposes of computing the money value of a benefit, the labour court may, if it so thinks fit, appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the labour court and the labour court shall determine the amount after considering the report of the commissioner and other circumstances of the case.
9. It will appear from a plain reading of the section that Section 330(1) will apply where an ascertained sum of money is due to a workman. The scope of Section 33C(2) is, however, different. That applies where a workman is entitled to receive from the employer any benefit, which is capable of being computed in terms of money. The award in favour of respondent 4 was for payment of 'all back wages including leave pay, if any, due to his credit.' That was a benefit which had to be reduced in terms of money by computation. Therefore, the case of respondent 4 comes not under Section 33C(1) but under Section 330(2) of the Industrial Disputes Act.
10. If it comes under Section 330(2), as I hold it does, then the State Government has no power to refer the matter to the labour court. This was the view which was taken by P.B. Mukharji. J., in the case of Rifle Factory Co-operative Society Ltd. v. The Fourth Industrial Tribunal, West Bengal 1960-II L.L.J. 517. The Madras High Court also is of the similar opinion as will appear from its decision in South Arcot Electricity Distribution Co., Ltd. v. Elumalai and Ors. 1959--I L.L.J. 624.
11. The same view was also expressed by the Supreme Court in interpreting Section 20(2) of the Industrial Disputes (Appellate Tribunal) Act, 1950 (now repealed), which used to be in pari materia with Section 33C(2) of the Industrial Disputes Act in the decision reported in Shetty (S.S.) v. Bharat Nidhi, Ltd. 1957-II L.L.J. 696.
12. I hold that under Section 330(1) of the Industrial Disputes Act, the Government has no juris diction to convert the workman's application for payment of a specific sum Into an application for computation of a benefit in terms of money under Section 330(2) of the Industrial Disputes Act and to refer the same to the labour court for decision. Such a reference by the State Government is without jurisdiction and beyond the competence of the Government. That being so, all proceedings which followed before the Labour Court, as a result of such a reference, are also bad.
13. Sri Smriti Kumar Roy Chowdhury, learned Advocate for respondents, did not dispute the correctness of the proposition, as in the reported judgments referred to above, but he contended that the point of jurisdiction in the form that it was taken before this Court, was not urged before the labour court and therefore the petitioner should not be allowed to urge that point now before this Court. Sri Roy Chowdhury is right that the point as to jurisdiction in the form that it is being now taken was not urged before the labour court. In making this contention Sri Hoy Chowdhury strongly relied upon a judgment of Sinha, J., in Suprova Sundari Devi v. Commissioner of Incometax, West Bengal 62 C.W.N. 426. In that case his lordship observed that the principle that is now firmly established is that the point of Jurisdiction must be taken in the tribunal below and at the earliest possible moment and a person who wishes to raise a point of jurisdiction and had not taken it in the Court below had to satisfy the Court that he was unaware of the defect in the jurisdiction and that is why it was hot taken. His lordship further observed that subject to this exception the general rule applies that a point of jurisdiction, whether initial or otherwise, mast be taken before the lower tribunal and at the first inatance. The decision does not help Sri Roy Chowdhury because the point as to lack of jurisdiction was taken at the earliest possible opportunity in the written statement filed by the petitioner before the labour court. The point as to lack of jurisdiction was taken in the widest possible language. In course of argument before the labour court, the point that was urged was not the same point as to lack of jurisdiction as is being urged before me. Nevertheless the point was taken and that distinguishes the judgment reported in Suprova Sundari Devi v. Commissioner of Incometax, West Bengal 62 C.W.N. 426 (supra) from this case.
14. Since the State Government has no jurisdiction to refer this matter to the labour court and since I hold that the proceedings before that Court were bad, I have to quash the impugned order whereby the labour court intended to assume jurisdiction in the matter. I order accordingly.
15. Nothing contained in this judgment, however, shall prevent respondent 4 from making an appropriate application under Section 33C(2) of the Industrial Disputes Act and get such relief from the labour court as he may be entitled by law. If, for the purpose of making such an application, it becomes necessary for him to approach the State Government to specify a labour court, the respondent State Government must specify such a Court, on such a request being made by respondent 4.
16. Let a writ of certiorari issue accordingly.
17. This rule is made absolute. I, however, make no order as to coats.