JUDGMENT Hon’ble Tarun Agarwala, J.—Heard the learned Counsel for the petitioner. 2. The respondent No. 2 filed a claim application under Section 33-C(2) of the U.P. Industrial Disputes Act claiming difference of pay. The workman alleged that he was appointed as a Lower Division Clerk but was made to do the work of a cashier, and therefore, was entitled to be given the pay scale of a cashier. 3. On the other hand, the employer denied the claim of the workman and contended that the workman, as part of his job, was directed to handle the cash since there was no post of cashier. The labour Court, allowed the claim of the workman, holding that since the workman was doing the work of a cashier, he was entitled to be paid the wages of a cashier. 4. The scope of Section 33-C(2) was considered by a Constitution Bench of the Supreme Court in Central Bank of India Limited v. P.S. Rajagopalan etc., AIR 1964 SC 743 wherein, the Supreme Court held : “In our opinion, on a fair and reasonable construction of sub-section (2) it is clear that if a workman’s right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise.” “The claim under Section 33-C (2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-section (2). As Maxwell has observed “where an Act confers a jurisdiction, it immediately also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. We must accordingly hold that Section 33-C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers.” 5. In Chief Mining Engineer, East India Coal Co. Limited v. Rameshwar and others, AIR 1968 SC 218 , the Supreme Court held : “It is clear 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. Since the scope of sub-section (2) is wider than that of sub-section (1) and the sub-section is not confined to cases arising under an award, settlement or under the provisions of Chapter V-A, there is no reason to hold that a benefit provided by a statute or a Scheme made thereunder, without there being any thing contrary under such statute or Section 33-C(2), cannot fall within sub-section (2). Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 which remains to be computed must fall under sub-section (2) and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer.” 6. In Municipal Corporation of Delhi v. Ganesh Razak and another, 1995(1) LLJ 395 , the Supreme Court after reviewing its earlier decisions held : “The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen’s entitlement and then proceeded to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act.” 7. In the aforesaid case, the daily rated/casual workers of the Delhi Municipal Corporation had claimed the same pay as paid to the regular employees on the principle of ‘equal pay for equal work’ on the ground that they were doing the same kind of work as regular employees were doing. The very basis of the claim was disputed by the Corporation as there was no earlier adjudication of the claim. Since the dispute relating to the entitlement was not incidental to the benefit claimed, the Supreme Court held that it was outside the scope of Section 33-C(2) and, that the Labour Court had no jurisdiction to decide the workmen’s entitlement and then proceed to compute the benefit so adjudicated. The Supreme Court further observed : “It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation’s that the interpretation is treated as incidental to the Labour Court’s power under Section 33-C(2) like that of the Executing Court’s power to interpret the decree for the purpose of its execution." And at another place held : “The workmen’s claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of ‘equal pay for equal work’ being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement of the benefit before computation of such a benefit could be sought. Respondents’ claim is not based on a prior adjudication made in the writ petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication ensuring to the benefit of these respondents as well. Respondents’ claim is not based on a prior adjudication made in the writ petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication ensuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents.” 8. The right to money which is sought to be calculated or the benefit which is sought to be computed under Section 33-C(2) 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 workman and his employer. The Labour Court cannot entertain a claim which is not an existing right and which could be made the subject matter of an Industrial Dispute in a reference under Section 10 of the Act. Where the very basis of the claim or the entitlement of the workman to a certain benefit is disputed and there being no earlier adjudication or recommendation thereof by the employer, a dispute relating to such entitlement which is not incidental to the benefit claimed would be clearly outside the scope of Section 33-C(2) of the Act. 9. In Tara and others v. Director, Social Welfare and others, 1998 (8) SCC 671 , the Supreme Court held that the status and nature of employment of the workman being disputed could not be adjudicated in an application under Section 33-C(2) unless there was a prior adjudication on merit. 10. In the present case, the claim of the workman is one of the entitlement on the post of cashier and consequently the benefit arising out of it. The entitlement on a particular post can only be adjudicated under Section 4-K of the U.P. Industrial Disputes Act or under Section 10 of the Industrial Disputes Act. This type of claim cannot be adjudicated under Section 33-C(2) of the Act. 11. Consequently, the impugned order of the labour Court passed under Section 33-C(2) cannot be sustained and is quashed. The writ petition is allowed. 12. This type of claim cannot be adjudicated under Section 33-C(2) of the Act. 11. Consequently, the impugned order of the labour Court passed under Section 33-C(2) cannot be sustained and is quashed. The writ petition is allowed. 12. This Court by an order dated 5.8.1997 had directed the petitioner to deposit the entire amount pursuant to the order of the labour Court. In the event, the amount has been deposited, it would be open to the petitioner to apply for a refund from the labour Court. If such an application is made, the amount of deposit alongwith interest accrued on it shall be refunded to the petitioner. ————