A. D. DESAI, B. J. DIVAN, S. B. MAJMUDAR, J. ( 1 ) THE Division Bench consisting of one of us (A. D. Desai J) and N. H. Bhatt J. has passed the following order of reference to a Full Bench in Special Civil Application No. 936 of 1975 with Special Civil Application No. 1122 of 1973 :-"in view of the decisions of the Supreme Court which are prima facie not reconcilable and far-reaching effect of the point of law involved these two writ petitions are referred to the Full Bench. The order of reference then sets out the various decisions of the Supreme Court and the difficulty was felt particularly because of the decision of the Supreme Court in Central Inland Water Transport Corporation Ltd. v. Workmen A. I. R. 1974 S. C. 1604 and the decision of the Supreme Court in U. P. Electric Supply Co. Ltd. v. R. K. Shukla A. I. R. 1970 S. C. 237. The main point which is involved to this case is the exact scope of the proceeding before the Labour Court in proceedings under sec. 33c (2) of the Industrial Disputes Act 1947 Sub-sec. (2) of sec. 33c is in these terms :" (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed then the question may subject to any rules that may be made under this Act be decided by such Labour Court as may be specified in this behalf by the appropriate Government". So far as sub-sec. (1) of sec. So far as sub-sec. (1) of sec. 33c is concerned it may be pointed out that it provides for recovery of money due from an employer and the provision is"33 (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A the workman himself or any other person authorised by him in writing in this behalf or in the case of the death of the workman his assignee or heirs 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: that every such application shall be made within one year from the date on which the money became due to the workman from the employer:provided further that any such application may be entertained after the expiry of the said period of one year if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. Thus in order to appreciate the scope of sec. 33c (2) one must bear in mind that whereas sub-sec. (1) of sec. 33c deals with the case where the money is due to a workman from an employer under a settlement or an award in the form of retrenchment compensation under the provisions of Chapter VA or lay-off compensation under Chapter V-A sub-sec. (2) deals with the recovery by the workman of any money or any benefit which is capable of being computed in terms of money and it empowers the Labour Court concerned to deal with the question arising as to the amouat of money due pr as to the amount at which such benefit should be computed. Industrial Disputes (Gujarat) Rules 1966 were made by the Government of Gujarat in exercise of the powers conferred by sec. Industrial Disputes (Gujarat) Rules 1966 were made by the Government of Gujarat in exercise of the powers conferred by sec. 38 of the Industrial Disputes Act 1947 and Rule 67 (1) of these Rules provides that where any is due to a workman from an employer under a settlement of an award or under the provisions of Chapter V-A the application has to be made in Form XX-A for recovery of the money due to him and where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money the workman concerned has to apply to the specified Labour Court in Form XX-B for the determination of the amount at which such benefit should be computed and where the Labour Court has determined the amount of the benefit under sub-rule (2) of Rule 67 the Workman has to apply in Form XX-C for the recovery of the money due to him. It may be pointed out at this stage that there is a decision of the Gujarat High Court in Ambalal v. D. M. Vin (1964) 5 G. L. R. 609 which is also required to be considered in the light of the decisions of the Supreme Court. Our task has been made easier by two recent decisions of the Supreme Court delivered after the order of reference was made by the Division Bench to a larger Bench. In Punjab Beverages v. Suresh Chand A. I. R. 1978 S. C. 995 Bhagwati J. speaking for the Supreme Court Bench of three Judges has explained the scope of sec. 33c (2) in paragraph 4 at page 997 in these terms:" It is now well-settled as a result of several decisions of this Court that a proceeding under sec. 33c (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. 33c (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 calculated or 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 the industrial workman and his employer. Vide Chief Mining Engineer East India Coal Co. Ltd. v. Rameshwar (1968) 1 S. C. R. 140; (A. I. R. 1968 S. C. 218 ). It is not competent to the Labour Court exercising jurisdiction under sec. 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 sec. 10 of the Act. Vide State Bank of Bikaner v. R. L. Khandelwal (1968) 1 Lab. L. J. 589 (S C. ). That is why Gajendragadkar J. pointed out in The Central Bank of India Ltd. v. P. S. Rajagopalan etc. (A. I. R. 1964 S. C. 743) that 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 sec. 33-C (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 sec. 33c (2 ). The workman who has been dismissed would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under sec. 33c (2 ). The workman who has been dismissed would no longer be in the service of the employer and though it is possible that on a reference to the Industrial Tribunal under sec. 10 the Industrial Tribunal may find on the material placed before it that the dismissal was unjustified yet until such adjudication is made the workman cannot the Labour Court in an application under sec. 33-C (2) to disregard his dismissal as wrongful and on that basis to compute his wages. The application under sec. 33c (2) would be maintainable only if it can be shown by the workman that the order of dismissal passed against him was void ab initio". Again in paragraph 13 at page 1002 Bhagwati J. has pointed out"it is also significant to note that if the contravention of sec. 33 were construed as having an invalidating effect on the order of discharge or dismissal sec. 33-A would be rendered meaningless and futile because in that event the workman would invariably prefer to make an application under sec. 33-C (2) for determination and payment of the wages due to him on the basis that he continues to be in service. If the workman files a complaint under sec. 33a he would not be entitled to succeed merely by showing that there is contravention of sec. 33 and the question whether the order of discharge or dismissal is justified on the merits would be gone into by the Tribunal and if on the merits it is found to be justified it would be sustained as valid despite contravention of sec. 33 but if on the other hand instead of proceeding under sec. 33-A he makes an application under sec. 33c (2) it would be enough for him to show contravention of sec. 33 and he would then be entitled to claim wages on the basis that he continues in service. Another consequence which would arise on this interpretation would be that if the workman files a complaint under sec. 33-A the employer would have an opportunity of justifying the order of discharge or dismissal on merits but if the workman proceeds under sec. 33c (2) the employer would have no such Opportunity. Whether the employer should be able to justify the order of discharge or dismissal on merits would depend upon what remedy is pursued by the workman whether under sec. 33c (2) the employer would have no such Opportunity. Whether the employer should be able to justify the order of discharge or dismissal on merits would depend upon what remedy is pursued by the workman whether under sec. 33a or under sec. 33 Such a highly anomalous result could never have been intended by the legislature. If such an interpretation were accepted no workman would file a complaint under sec. 33-A but he would always proceed under sec. 33c (2) and sec. 33a would be reduced to futility. It is therefore impossible to accept the argument that the contravention of sec. 33 renders the order of discharge or dismissal void and inoperative and if that be so the only remedy available to the workman for challenging the order of discharge or dismissal is that provided under sec. 33a apart of course from the remedy under sec. 10 and he cannot maintain an application under sec. 33 for determination and payment of wages on basis that he continues to be in service. The workmen can proceed under sec. 33c (2) only after the Tribunal has adjudicated on a complaint under sec. 33a or on a reference under sec. 10 that the order of discharge or dismissal passed by the employer was not justified and has set aside that order and reinstated the workman". The law was thus also explained in Namor Ali v. The Central Inland Water Transport Corporation Ltd. (A. I. R. 1978 S. C. 275 ). There the Supreme Court Bench consisting of Untwalia and Kailasam JJ. has considered the previous cases on the point and has summed up the legal position thus :"where the only dispute in the proceeding under sec. 33c (2) between the management and a section of its workman is whether those workman are entitled to take advantage of a settlement and the quantum or rate of extra wag-s to which the workmen would be entitled under the settlement is not in dispute the application under sec. 33c (2) Court not be rejected on ground that there is no dispute about the money due. The provisions of sec. 33c (2) do not require that for conferring jurisdiction on a Labour Court not only that the workmen should be entitled to any money due but also that there should be a dispute about the amount of that money". 33c (2) Court not be rejected on ground that there is no dispute about the money due. The provisions of sec. 33c (2) do not require that for conferring jurisdiction on a Labour Court not only that the workmen should be entitled to any money due but also that there should be a dispute about the amount of that money". The Bench further held that on a plain reading of the wordings of sec. 33c (2) it would be found that where any workman is entitled to receive from employer any money and if any question arises as to the amount of money due then the question may be decided by the Labour Court. The expression if any question arises as to the amount of money due embraces within its ambit any one or more of the following kinds of disputes : (1) Whether there is any settlement or award as alleged ? (2) Whether any workman is entitled to receive from the employer any money at all under any settlement or an award etc. ? (3) If so what will be the rate or quantum of such amount ? (4) Whether the amount claimed is due or not ?broadly speaking these will be the disputes which will be referable to the question as to the amount of money due. If the right to get the money on the basis of the settlement or the award is not established no amount of money will be due. If it is established then it has to be found out albeit it may be by mete calculation as to what is the amount due. For finding it out it is not necessary that there should be a dispute as to the amount of money due also. The fourth kind of dispute obviously and literally will be covered by the phrase amount of money due. A dispute as to all such questions or any of them would attract the provisions of sec. 33c (2) of the Act and make the remedy available to the workman concerned". It was further held that"it cannot be said that if there is a dispute as to any amount due it is to be decided by the appropriate Government under sub-sec. (1) of sec. 33c and not by the Labour Court under sub-sec. (2)". 33c (2) of the Act and make the remedy available to the workman concerned". It was further held that"it cannot be said that if there is a dispute as to any amount due it is to be decided by the appropriate Government under sub-sec. (1) of sec. 33c and not by the Labour Court under sub-sec. (2)". These two decisions and particularly the observations of Bhagwati J. in Punjab Beverages Case that clearly point out so far as the workman is concerned he must proceed on the footing of an existing right; the existing right may be under the terms of the settlement or an award or the right may have been provided for either by custom or by law or by agreement but there must be an existing right and so long as there is that existing right which is claimed by the workman he can apply to the Labour Court under sec. 33c (2) and the Labour Court will have jurisdiction to deal with the application on merits. It must be pointed out that sec. 10 of the Act which deals with reference to both Court of Inquiry Labour Court or an Industrial Tribunal is wide enough to cover all industrial disputes includeing those which would fall under sec. 33c (2 ). Thus where sec. 10 deals with references of cases to Industrial Disputes of all kinds sec. 33c (2 provides a speedier remedy for the recovery of the dues of a workman against his employer in certain specified type of cases and the basis is that there must be an existing right. Sec. 33c (2) is obviously not meant for creation of any new rights or fresh rights. All that it deals with is an existing right which as we have observed above may arise because of an adjudication in an earlier proceeding or which has been provided for either by custom or by law or by agreement. ( 2 ) IT must be pointed out that a Bench of five Judges of the Supreme Court has exhaustively dealt with the entire question of the scope of sec. 33 in Central Bank of India v. Rajagopalan A. I. R. 1964 S. C. 743. ( 2 ) IT must be pointed out that a Bench of five Judges of the Supreme Court has exhaustively dealt with the entire question of the scope of sec. 33 in Central Bank of India v. Rajagopalan A. I. R. 1964 S. C. 743. It must also be pointed out that in all subsequent decisions of the Supreme Court the Bench of Judges has been either of two or three or four Judges and in all these cases less than five Judges. The principle to be followed whenever there is even an apparent conflict between decisions of a larger Bench and a smaller Bench of the Supreme Court has been pointed out by Beg J. (as he then was) speaking for the Supreme Court in Union of India v. K. S. Subramanian A. I. R. 1976 S. C. 2433 In paragraph 12 of the judgment at page 2437 he has observed"the proper course for a High Court in such a case is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court. That is the practice followed by this Court itself. The practice has now crystallized into a rule of law declared by this Court. If however the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view". Of course if the views expressed earlier by a larger bench of the Supreme Court have been explained even by a smaller bench in a subsequent decision the explanation by the smaller bench of the Supreme Court would be required to be followed by High Courts before whom the earlier decision of the larger bench and the subsequent explanation of the same judgment by the smaller bench are cited. Otherwise as indicated by Beg J. in Union of India v. K. S. Subramanian (Supra) the High Court is bound to follow the decision of the larger Bench of the Supreme Court. ( 3 ) IT may be pointed out that in none of the subsequent decisions has any Bench of the Supreme Court dissented from the views expressed by the bench of five Judges in Central Bank of India v. Rajogopalan. ( 3 ) IT may be pointed out that in none of the subsequent decisions has any Bench of the Supreme Court dissented from the views expressed by the bench of five Judges in Central Bank of India v. Rajogopalan. Every one of the subsequent Benches has purported to follow the decision of the Supreme Court in Central Bank of India v. Rajagopalan. ( 4 ) GAJENDRAGADKAR J. (as he then was) speaking for the Bench of five Judges in Central Bank of Ins v. Rajagoplan has fully explained ambit of sec. 33c (2 ). It was pointed out in that case"though in determining the scope of sec. 33c Industrial Disputes Act care must be taken not to exclude cases which legitimately fall within its purview it must also be borne in mind that cases which fall within sec 10 (1) of the Act for instance cannot be brought within the scope of sec. 33c". According to the Supreme Court in Central Bank of India v. Rajagopalan in paragraph 18 at page 749". . . THERE can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights it is virtually exercising execution powers in some cases and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution It is of course true that the executing Court cannot go behind the decree nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing Court the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under sec. 33c (2 ). Therefore we feel no difficulty in holding that for the purpose of making the necessary determination under sec. 33-C (2 ). it would in appropriate cases be open to the Labour Court to interpret the award or settlement on which the workmans right rests". It has also been pointed out". . . . claims made under sec. 33-C (1) by itself can be only claims referable to the 33 award or the relevant provisions of Chapter V-A These words of limitations are not to be found in sec. It has also been pointed out". . . . claims made under sec. 33-C (1) by itself can be only claims referable to the 33 award or the relevant provisions of Chapter V-A These words of limitations are not to be found in sec. 33-C (2) and to that extent the scope of sec is undoubtedly wider than that of sec 33-C (1 ). It is true that even in respect of the larger class of cases which fall under sec 33c (2) after the determination is made by the Labour Court the execution goes back again to sec. 33c (1 ). That is why sec. 33c (2) expressly provides that the amount so determined may be recovered as provided for in sub-sec. (1 ). It is unnecessary in the present appeals to state exhaustively or even to indicate broadly what other categories of claims can fall under sec. 33c (2)There is no doubt that the three categories of claims mentioned in sec. 33c (1) fall under sec. 33c (2) and in that sense sec. 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 Chapter V-A may also be competent under sec 33c (2) and that may illustrate its wider scope. We would However like to indicate some of the Claims which would not fall under sec. 33c (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 a claim for the recovery of his salary or wages under sec. 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 sec. 33c (2 ). If the settlement has been duly reached between the employer and his employees and it falls under sec. 33c (2 ). If the settlement has been duly reached between the employer and his employees and it falls under sec. 18 (2) or (3) of the Act and is governed by sec. 19 (2) it would not be open to an employee notwithstanding the said settlement to claim the benefit as though the said settlement had come to an end. If the settlement is intended to be terminated proper steps may have to be taken in that behalf and dispute that may arise thereafter may be dealt with according to the other procedure prescribed by the Act. Thus our conclusion is that the scope of sec. 33c (2) is wider than sec. 33c (1) and cannot be wholly assimilated with it though for obvious reasons we do not propose to decide or indicate what additional cases would fall under sec. 33c (2) which may not fall under sec. 33c (1 ). In this connec tion we may incidentally state that the observations made by this Court in the case of Punjab National Bank Ltd. (A. I. R. 1963 SC 487) that sec. 33c is a provision in the nature of execution should not be interpreted to mean that the scope of Sec. 33c (2) is exactly the same as sec. 33c (1 ). ( 5 ) IN connection with the decision of the Bombay High Court in Sawatram Romprasad Mills Co. Ltd. v. Baliram 65 Bom. L. R. 91 the Supreme Court observed in Central Bank of India case (supra)". . . THE High Court was dealing with a claim made under Chapter V-A of the Act and there can be no doubt that such a claim together with all questions incidental to its decision can be properly determined under sec. 33c (2 ). In reaching its conclu sion the High Court has no doubt made certain broad and general observations in regard to the scope of the jurisdiction conferred on the Labour Court under sec. 33c (2 ). Those observations are in the nature of obiter dicta and in so far as they may be inconsistent with our present decision they should be held to be not justified by the terms of sec. 33c (2)". 33c (2 ). Those observations are in the nature of obiter dicta and in so far as they may be inconsistent with our present decision they should be held to be not justified by the terms of sec. 33c (2)". ( 6 ) IT must be pointed out that in Central Bank of India v. Rajagopalan (supra) the case of the workman concerned was that besides attending to his routine duties as clerk he had been operating the adding machine provided for use in the clearing department of the Branch during the period mentioned in the list annexed to the petition and it was alleged that as such he was entitled to the payment of Rs. 10. 00 per month as special allowance for operating the adding machine as provided for under paragraph 164 (b) (1) of the Sastry Award. On this basis each one of the respondents made his respective claim for the amount covered by the said allowance payable to him during the period specified in the calculations. The employer disputed the workmens claim and it was urged that the workmen could claim only non-monetary benefits under the Award that were capable of computation and so sec. 33c (2) was inapplicable to their claim. The Supreme Court in Central Bank of India v. Rajagopolan went into thy merits of the case ultimately and after considering the facts of tie case and the question whether the workman concerned could be described as Comptists that is those who are working on the computing machine or whether they were merely operators of adding machines the Supreme Court remanded the proceedings to the Labour Court with a direction that it should allow the parties to amend the pleadings if so desired and give its decision in respect of the respective cases but the Supreme Court held that it was open to the Labour Court to decide whether the workman before it who was basing his rights on a particular adjudication namely the Sastry Award fell within the particular category for which special provision had been made in that adjudication. This order of the Supreme Court in Central bank of Indias case therefore illustrates that once the workman concerned bases his claim on an existing right namely on an adjudication the question whether the workman falls with. This order of the Supreme Court in Central bank of Indias case therefore illustrates that once the workman concerned bases his claim on an existing right namely on an adjudication the question whether the workman falls with. in the award or the adjudication is a matter which can be dealt with and should be dealt with by the Labour Court under sec. 33c (2) But if the question arises whether the workman has been rightly or wrongly dismissed or whether the workman has been rightly or wrongly retrenched Labour Court cannot deal with that dispute under sec 33c (2 ). To put it briefly so long as there is no dispute on the showing of the workman on the workmans application under sec. 33c (2) that the relationof employer and employee has not ceased to exist and the claim which the workman puts forward in his application under sec. 33c (2) is based on an existing right the application under sec. 33c (2) is maintainable. ( 7 ) IN this connection it may be pointed out that under the principle of Topandas v. M/s. Gorakhram Gokalchand A. I. R. 1964 S. C. 1348 in deciding maintainability of proceedings what is to be looked at is the plaint in a civil suit or the application in case arising under sec. 33c (2) of the Industrial Disputes Act and not what the other side contends or urges in its reply or written statement. As the Supreme Court put it in Topandass case. ". . the defendant cannot force the plaintiff to go to a forum where on his averments he cannot go". Applying this principle to the scope of sec. 33c (2) once the workmans case as disclosed in his application to the Labour Court shows that the existence of the relationship of employer and employee is not put in dispute by the workman himself and on the basis of an existing relationship of employer and employee and on the basis of existing right which may arise out of an adjudication or which may be provided for by custom or law or agreement the application under sec. 33c (2) is maintainable. The fact that the employer by his plea raises dispute does not mean that the jurisdiction of the Labour Court to deal with the question is taken away. 33c (2) is maintainable. The fact that the employer by his plea raises dispute does not mean that the jurisdiction of the Labour Court to deal with the question is taken away. ( 8 ) IN U. P. Electric Supply Company v. R. K. Shukla (supra) the Bench of two Judges of the Supreme Court consisting of J. C. Shah J. (as he then and Mitter J. dealt with the provisions of sec. 33c (2 ). The decision of the Supreme Court in Central Balk of India v. Rajagopalan (supra) was cited and one of the passages from the judgment of Gajendragadkar. J. which was referred to above was also extracted. In paragraph 15 of the judgment at page 242 Shah J. observed" The Legislative intention disclosed by secs. 33c (1)and 33c (2) is fairly clear. Under sec. 33c (1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of Ch. V-A the Workman himself or any other person authorised by him in writing in that behalf may make an application to the appropriate Government to recover the money due to him. where the workman entitled to receive from the employer any benefit which is capable of being computed in terms of money applies in that behalf the Labour court may under sec. 33c (2) decide the questions arising as to the amount of money due or as to the amount at which such benefit shall be computed. Sec. 33- C (2) is wider than sec. 33c (1 ). Matters which do not fall within the terms of sec. 33 may if the workman is shown to be entitled to receive the benefits fall within the terms of sec. 33c (2 ). If the liability arises from an award settlement or under the provisions of Ch. V-A or by virtue of a statute or a scheme made thereunder mere denial by the employer may not be sufficient to negative the claim under sec. 33c (2) before the Labour Court. Where however the right to retrenchment compensation which is the foundation of the claim is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon on a reference it would be straining the language of sec. 33c (2) before the Labour Court. Where however the right to retrenchment compensation which is the foundation of the claim is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon on a reference it would be straining the language of sec. 33c (2) to hold that the question whether there has been retrenchment may be decided by the Labour Court. The power of the Labour Court is to compute the compensation claimed to be payable to the workman on the footing that there has been retrenchment of the workmen. Where retrenchment is conceded and the only matter in dispute is that by virtue of sec. 25-FF no liability to pay compensation has arisen the Labour Court will be competent to decide the question In such a case the question is one of computation and not of determination of the conditions precedent to the accrual of liability. Where however the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental in our judgment the Labour Court Will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested. " ( 9 ) THE Supreme Court itself has observed in R. B. Bansilal Abirchand Mills Co. Pvt. Ltd. v. The Labour Court Nagpur A. I. R. 1972 S. C. 451 that the observations of Shah J. in U. P. Electric Supply Co. Ltd. v. R. K. Shukla (supra) cannot be considered binding on the Supreme Court as all the aspects were not placed before the Court then. The Bench of the Supreme Court That decided the R. B. B. A. Mills case was a Bench of four Judges. After setting out extensively passages from the judgment of U. P. Electric Supply Co. Ltds case and particularly paragraph 15 in Ramakrishna Ramnath v. Presiding Officer Nagpur 1970 L. L. J. 306 the Bench of two Judges consisting of J. M. Shelat and G. K. Mitter JJ. observed"the concluding portion of the above observations cannot be considered dissociated from the setting in which they were made. As was pointed out in the case of the Central Bank (supra) the examination of the claim under sec. 33-C (2) may in some Cases have to be preceded by an enquiry into the existence of the right. observed"the concluding portion of the above observations cannot be considered dissociated from the setting in which they were made. As was pointed out in the case of the Central Bank (supra) the examination of the claim under sec. 33-C (2) may in some Cases have to be preceded by an enquiry into the existence of the right. A mere denial of the fact of retrenchment would not be enough to take the matter out of the jurisdiction of the Labour Court". In R. B. B. A. Mills Co. s case (supra) the Supreme Court pointed out in paragraph 23 at page 458 that the Labour Courts jurisdiction could not be ousted by a mere plea denying the workmans claim to the computation of the benefit in terms of money; the Labour Court had to go into the question and determine whether on the facts it had jurisdiction to make the computation. It could not however give itself jurisdiction by a wrong decision on the jurisdictional plea Ultimately therefore the question has to be approached in the light of what is the workmans case when he approaches the Court and not from the point of view of the dispute raised by the employer in his reply to the claim of the workman. ( 10 ) IN Central Inland Water Transport Corporation Ltd. v. Workmen A. I. R. 1974 S. C. 1604 a Bench of two Judges consisting of Palekar and Bhagwati JJ. dealt with the scope of sec. 33c (2 ). This decision in Central Inland Water Transport Corporations case on the face of it purports to narrow down the scope of sec. 33c (2 ). Palekar J. speaking for the Supreme Court observed in paragraph 12 at page 1608"it is now well-settled that a proceeding under sec. 33c (2) is a proceeding generally in the nature of an execution proceeding whereas 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 benefit in view of its being previously adjudged or otherwise duly provided for. In Chief Mining Engineer East India Coal Co. This calculation or computation follows upon an existing right to the money or benefit in view of its being previously adjudged or otherwise duly provided for. In Chief Mining Engineer East India Coal Co. Ltd. v. Rameswar (A. I. R. 1968 S. C. 218) it was reiterated that proceedings under sec. 33c (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. In a suit a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiffs 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 defendants liability if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above that is to sly the extent of the defendants liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii ). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under sec. 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 sec. 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. It is true that in a proceeding under sec. 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 sec. 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) 2 Lab L. J. 589 (S C. 7 that a workman cannot put forward a claim in an application under sec. 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 sec. 10 of the Act". It may be pointed out that in paragraph 14 of the judgment Palekar J. dealt with the decision of the Supreme Court in Central Bank of India Ltd. v. P. S. Rajagopalan (supra) and the decision in Central Inland Water Transport Corporation Ltd. v. Workmen does not Carry the matter any further beyond the stage to which the matter was taken by the Supreme Court in Central Bank of India Ltd. v. P. S. Rajagopalan. Thus the decision of Central Inland Water Transport Corporations case is merely the application of the principles laid down by the Supreme Court in Central Bank of India Ltd. v. P. S. Rajagopalan to the facts of the case before it. It must also be pointed out that Bhagwati J. who was a party to the decision in Central Inland Water Transport Corporations case himself delivered the judgment in Punjab Beverages v. Suresh Chand (supra) and the Bench that decided the Punjab Beverages case was a Bench of three Judges. Under these circumstances in view of the principle referred to above we must follow the principle as explained by the Bench of three Judges in Punjab Beverages case. ( 11 ) IN Dahyabhai Ranchhoddas v. M/s. Jayantilal Mohanlal (1973) 14 G. L. R. 1 the Division Bench of this High Court consisting of Bhagwati C. J. (as he then was) and D. A. Desai J held while explaining the scope of sec. 33c (2)"whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and is denied such benefit he can approach the Labour Court under Sec. 33c (2) of the Industrial Disputes Act for recovering both monetary or non-monetary benefit which can be computed in terms of money and which he is entitled to receive from his employer. The benefit sought to be recovered must necessarily be a pre-existing benefit or benefit flowing from a pre-existing tight. The workman approaching the Labour Court under sec. 33c (2) for enforcement of right or benefit must be able to point to some pre-existing right or benefit which he seeks to enforce. If he seeks some new rights or change in conditions of service or some new benefit neither acquired nor granted nor conferred by the statute he must pursue his remedy under sec. 10 of the Industrial Disputes Actif the money or the benefit is claimed by a workman on the basis that the right is denied it is competent for the Labour Court in proceeding under sec. 33c (2) to decide whether the right does or does not ex st. Right contemplated by sec. 33c (2) may have been acquired anywhere and may be in respect of any matter falling for the purpose of sec. 33c (2) to decide whether the right does or does not ex st. Right contemplated by sec. 33c (2) may have been acquired anywhere and may be in respect of any matter falling for the purpose of sec. 10 either under second schedule or third schedule If a right in respect of any of such matters has yet to be acquired the workman has to powered under sec. 10 but if it is once acquired and its existence is disputed the Labour Court would have jurisdiction to decide whether the right existed or not. Where a workman claims benefit flowing from a pre-existing right and approaches the Labour Court for computation of the right in money and the employer disputes existence of the right the Labour Court will have jurisdiction to determine the question whether the right existed and if existence of the right is established then to proceed to compute the benefit flowing therefrom into money and on its decision recovery proceeding can start". We are in agreement with the scope of sec. 33c (2) culled out by the Division Bench in Dahyabhai v. M/s. Jayantilal Mohanlal (supra) from decided Cases. The Division Bench also pointed out that the observations of the Bench of two Judges of the Supreme Court in U. P. Electric Supply Co. case (supra) had not been approved by the Supreme Court itself in R. B. B. A. Mills Co. Ltd. v. Labour Court Nagpur (supra ). We are of the opinion that the conclusion of the Division Bench is entirely on the same lines as the subsequent decision of the Supreme Court in Punjab Beverages case (supra ). ( 12 ) THUS so far as the scope of sec. 33c (2) is concerned all that has to be done is to follow the principles laid down by the Bench of five Judges of the Supreme Court in Central Bank of India Ltd. v. Rajagopalan (supra) as explained by the latest decision in Punjab Beverages case (supra ). ( 13 ) WE may point out that. in one of the earlier decisions of this Court in Ambalal v. D. M. Vin (1964) 5 G. L. R. 619 it was held that if any claim is made by the workmen that claim must be under the Industrial Law and having regard to item No. 10 in the Third Schedule and sub-sec. (2) of sec. in one of the earlier decisions of this Court in Ambalal v. D. M. Vin (1964) 5 G. L. R. 619 it was held that if any claim is made by the workmen that claim must be under the Industrial Law and having regard to item No. 10 in the Third Schedule and sub-sec. (2) of sec. 33c the Labour Court has no jurisdiction to determine the same as its jurisdiction is confined only to the determination of the amount of benefit arising out of an existing right. It was further held that having regard to the fact that retrenchment compensation cannot be claimed under sec. 25f of the Industrial Disputes Act and must necessarily be claimed de hots that section the Labour Court had got no jurisdiction to deal with the matter under sec. 33c (2 ). The Labour Court would have also no jurisdiction to determine the amount of compensation as the right to retrenchment was not claimed under any existing law or award or settlement. ( 14 ) WITH great respect to the learned Judges who decided the case of Ambalal v. D. M. Vin (supra) we are unable to agree with their conclusions regarding the scope of sec. 33c (2 ). If the workman himself accepts the factum of retrenchment and in his application asks for the order of the Court that the amount of retrenchment compensation should be computed and paid to him and applies for recovery under sec. 33c (2) the Labour Court would have jurisdiction because in that event the Labour Court would not be deciding whether the workmen has been rightly or wrongly retrenched but proceeding upon the basis of retrenchment. The rights given to the workman under the statute would have to be computed and the amount properly determined in sec. 33c (2) proceedings. It is not the plea of the employer that would matter in deciding whether the Court has jurisdiction under sec. 33c (2 ). What the Court should determine is for what relief or on what basis the workman approaches the Court. If he approaches the Court on the footing that there is retrenchment and the retrenchment is accepted by the workman then rest of the matter can be decided under sec. 33c (2 ). What the Court should determine is for what relief or on what basis the workman approaches the Court. If he approaches the Court on the footing that there is retrenchment and the retrenchment is accepted by the workman then rest of the matter can be decided under sec. 33c (2) and to that extent that decision in Ambalal v. D. M. Fin (supra) must in the light of the subsequent decisions of the Supreme Court be deemed to have been overruled. The observations of the Supreme Court in U. P. Electric Supply Co. Ltd. v. R. K. Shukla (supra) have also not found favour with the Supreme Court in R. B. B. A. Mills case (supra) and the decision in Central India Water Transport Corporation Ltd. v. Workmen (supra) also must be confined to the facts of the case and must be deemed to be an application of the principles laid down in Central Bank of India v. P. S. Rajagopalan (supra) to the facts of the case before the Supreme Court. ( 15 ) IN our opinion the position in law is now explained by the Supreme Court in Punjab Beverages case (supra) and it is in the light of the decision of the three Judges of the Supreme Court in Punjab Beverages case that the scope of sec. 33c (2) and its ambit will have to be determined. ( 16 ) WE may also point out that a Division Bench of this High Court consisting of J. B. Mehta and A. D. Desai JJ. in Special Civil Application No. 743 of 1957 decided on March 18 1970 distinguished the decision of the Supreme Court in U. P. Electric Supply Co Ltd. case. The Division Bench relied upon the decision of the Supreme Court in Board of Directors of the South Arcot Electricity Distribution Co. Ltd. v. N K Mohammad Khan etc. (1969) 1 Supreme Court Cases 192 and the following passage from the decision in South Arcot Electricity Distribution Co. case"these decisions make it clear that a workman cannot put forward a claim 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 only requiring reference under sec. so of the Act". case"these decisions make it clear that a workman cannot put forward a claim 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 only requiring reference under sec. so of the Act". In South Arcot Electricity Distribution Companys case it was pointed out by the Supreme Court that in that particular case the claim for retrenchment compensation on the transfer of the electrical undertaking was based under sec. 25-FF of the Act as the said right accrued to the workmen under sec. 25-FF of the Act and was an existing right at the time when the applications were made. The Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the applications under that provision. The mere denial of that right by the company could not take away the jurisdiction of the Labour Court and therefore the order made by the Labour Court was held to be competent by the Supreme Court. The Division Bench pointed out that the decision in South Arcot Electricity Distribution Company case was not overruled in any manner by the decision in U. P. Electric Supply Co. Ltd. case. It was pointed out that in the U. P. Electric Supply Co. Ltd. case the retrenchment itself was disputed because the employer had taken up the case that the workers voluntarily abandoned the employment under the company because they found it more profitable to take up employment under the Board. That is why according to the Division Bench in U. P. Electric Supply Co. Ltd. case the Supreme Court held that the Labour Court was incompetent to decide this question whether there was retrenchment or voluntary abandonment of the employment as this issue was exclusively within the competence of the Industrial Tribunal. ( 17 ) AS regards the merits of the two Special Civil Application which have been referred to us it may be pointed out that in Special Civil Application No. 1122 of 1973 the case of the applicant while making the application under sec. 33c (2) was that he was serving as a jobber in the Weaving Department of the respondent Company for about twenty years. 33c (2) was that he was serving as a jobber in the Weaving Department of the respondent Company for about twenty years. As automatic looms were to be installed in the Weaving Department and simple looms were to be recovered the operatives and jobbers were required to be retrenched or voluntary resignations were to be invited by the Mills Company and the persons who were affected thereby were to be given retrenchment compensation alongwith their other dues. On December 24 1971 the applicant tendered his resignation in the printed form through Majoor Mahajan Sangh Nadiad with the condition that he may be given benefits of retrenchment compensation and all other dues and that this resignation with this condition was accepted on December 25 1971 and as per the condition of the printed form he was paid only gratuity but was not paid retrenchment compensation of Rs. 6 0 and Rs. 200/-towards leave with wages. By its written statement the employer contended that the application was false. It also contended that the applicant resigned on his one unconditionally; and that the question of retrenchment therefore did not arise. By way of a preliminary objection a contention was raised that the application was not maintainable under sec. 33c (2 ). The Presiding Officer of the Labour Court before whom the application was heard followed the decision in Ambalal v. D. M. Vin (supra) and held that since the application was for retrenchment compensation and the workman nowhere stated that he had filed the present application for recovery of the amount due to him otherwise than by way of retrenchment the application was not maintainable under sec. 33c (2 ). ( 18 ) WE have held above that for the purposes of sec. 33c (2) what matters is the case of the workman as set out in the application. In the instant case the workman was claiming his dues under an existing right namely that in view of the condition which he had written on the printed form he was entitled to retrenchment compensation. He was not disputing the factum of retrenchment and in our view since the decision of the Division Bench of this Court in Ambalal Shivlal v. D. M. Vin must be deemed to have been overruled the decision of the Labour Court must be quashed and set aside. He was not disputing the factum of retrenchment and in our view since the decision of the Division Bench of this Court in Ambalal Shivlal v. D. M. Vin must be deemed to have been overruled the decision of the Labour Court must be quashed and set aside. The matter will now go back to the Labour Court for deciding the application on merits bearing in mind the principles laid down by the Supreme Court in the cases referred to hereinabove and the principles which we have culled out from those decisions. ( 19 ) IN Special Civil Application No. 936 of 1975 the case of the workman was that he was working in the respondents factory since many years and was a permanent clerk and that the factory was closed from June 1 1971 and he claimed closure compensation aggregating to Rs. 1 800 and the recovery certificate to enable him to recover the amount. In its written statement the respondent contended that the application was not legally tenable and various contentions were raised in the case The Labour Court held on the preliminary objection that it had no jurisdiction to entertain the application on the ground was that the applicant had no existing right in so far as closure compensation was concerned. There was no finding so far as the petitioner workman was concerned on the issues that were raised and the labour Court observed"all these major issues cannot be decided by this Court because it has got limited jurisdiction under sec. 33c (2) of the Act. These major issues can be decided by way of Reference to the Industrial Tribunal as it is beyond the jurisdiction of this Court to decide all these industrial major disputes". It is obvious that the question whether on the facts which the workman was urging in his application under sec. 33c (2) the application under secs. 33c (2) was maintainable or not has to be decided by the Labour Court. It is after examining the evidence on merits that the Labour Court could have decided whether there was a closure of the factory or not and whether the applicant left the job on his own accord as the employer contended. 33c (2) the application under secs. 33c (2) was maintainable or not has to be decided by the Labour Court. It is after examining the evidence on merits that the Labour Court could have decided whether there was a closure of the factory or not and whether the applicant left the job on his own accord as the employer contended. But merely because of the disputes raised by the respondent-employer some issues were required to be gone into for the purpose of granting relief to the workman it could not be said that the application under sec. 33c (2) was not maintainable. As we have observed above mere denial of the right of the workman by the employer would not take away the jurisdiction of the Labour Court which it otherwise had. ( 20 ) UNDER these circumstances the order of the Labour Court in this case also is quashed and set aside and the matter will now go back to the Labour Court for deciding the question on merits in the light of what has been stated hereinabove. . ( 21 ) RULE is therefore made absolute each of these two matters. In view of the unsettled position of law till recently the fair order would be that each party should bear its own casts in each of those Special Civil Applications. .