JUDGMENT :- By this petition under Article 227 of the Constitution of India, the petitioner/employee has questioned the order dated 18-1-2001 passed by the First Labour Court, Nagpur in I.D.A. Case No. 83/1989, rejecting the application filed by them under section 33-C(2) of the Industrial Disputes Act, 1947 for grant of wages at over time rate for work done by them on holidays. The petitioners had thereafter, sought review of that order vide Misc. I.D.A. No. 4/2003 and that review came to be rejected on 16-3-2005. 2. The applicant No.1 before the Labour Court is no more and his legal heirs are petitioner Nos. 1(A) to 1(C). Petitioner No.2 is applicant No.2 before Labour Court. Both the applicants/employees claimed that, they were entitled to more wages i.e. wages at 1½ times of total wages when they worked on weekly off or on public holiday, and accordingly they were getting the said benefit till 1982 when it was suddenly discontinued. Initially they claimed amount of Rs. 20,000/- and Rs. 15,000/- from 1982 till their respective dates of retirement. During the pendency of the matter, they have carried out amendment and enhanced the claim to Rs. 22500/- and Rs. 23500/- respectively. The respondent employer opposed their claim by pointing out that, they were not entitled to receive any such amount at 1½ times of wages for work done on weekly off day or on public holidays. The First Labour Court recorded evidence of both the applicants and of employer, and then delivered the impugned order. It found that, though the applicants established the existing right to receive the amount, they did not bring on record necessary material to enable it to compute their entitlement. It found that there was no evidence about exact number of holidays on which the applicants worked or on weekly off days on which they worked or then about the rate of wages prevalent from time to time. It therefore, found itself unable to compute the said amount. It thus dismissed their application under section 33-C(2) of the Industrial Disputes Act. The applicants sought review, which also came to be dismissed. 3. I have heard Shri L.K. Khamborkar, learned counsel for petitioners and Shri Wachasunder, learned counsel for respondent. 4. It therefore, found itself unable to compute the said amount. It thus dismissed their application under section 33-C(2) of the Industrial Disputes Act. The applicants sought review, which also came to be dismissed. 3. I have heard Shri L.K. Khamborkar, learned counsel for petitioners and Shri Wachasunder, learned counsel for respondent. 4. By placing reliance upon the judgment of this Court reported at 1994 Mh.L.J. 1844, Municipal Council, Latur vs. Shivaji Vaijnath Kamble, Shri Khamborkar, learned counsel has urged that once the existing right i.e. entitlement to claim amount was found by the Labour Court, it ought to have made efforts to compute the amount due and payable to the petitioners and its failure to do so, constitute refusal to exercise jurisdiction. He has relied upon paragraph Nos. 13 and 14 of the reported judgment to urge that such duty is case by law upon the Labour Court. 5. Shri Wacha sunder, learned counsel on the other hand, has relied upon the judgment of Hon’ble Apex Court reported at (2008) 7 SCC 22 , D. Krishnan and another vs. Special Officer, Vellore Co-operative Sugar Mill, particularly paragraph No. 17 to urge that the burden was upon the applicants to bring on record necessary material to enable the Labour Court to compute the amount due and payable to them. He invites attention to the evidence of General Secretary of the recognized Union, examined by the applicants to show that though such details could have been furnished by the applicants, but then the same have not been furnished. He argues that as the applicants never made any efforts to assist the Labour Court to arrive at a particular amount in this respect, the impugned order does not require any interference. Both the learned counsel have invited attention to the pleadings, evidence and documents on record to substantiate their contentions. 6. At the outset it needs to be stated that the finding of existing right recorded by the Labour Court is not in dispute before this Court. Thus the finding as recorded on issue No. 1 in affirmative has attained finality. Perusal of said part of the order dated 18-1-2001 reveals that the applicants before the Labour Court were getting said benefit from 1971 to 1982 and though their designation were changed as supervisors, their nature of duties remained the same. Thus the finding as recorded on issue No. 1 in affirmative has attained finality. Perusal of said part of the order dated 18-1-2001 reveals that the applicants before the Labour Court were getting said benefit from 1971 to 1982 and though their designation were changed as supervisors, their nature of duties remained the same. They have stated that, as Supervisors also they have continued to receive the said benefit from 1978 to 1982. The respondents have in cross-examination and in pleadings tried to show that the said benefit paid to the applicants from 1978 onwards was released inadvertently. The Labour Court has found that such inadvertence or wrong release has not been established on record. It also found that in spite of promotion of both the applicants, their nature of duties remained unchanged and Labour Court also noticed admission given by Shri Pande, (witness of respondent - employer), that he was not aware whether there was any duty list of Supervisors. It noted that the grant of said benefit to applicants from 1972 to 1978 was not in dispute, and they continue to receive it from 1978 till 1982. It has then proceeded to consider the issue of their status as workman and recorded has finding in their favour. It has also considered the fact that provisions of Bombay Industrial Relations Act were applicable to the establishment of the respondent and hence it has considered the status of the applicant qua provisions of section 3(13) of the Bombay Industrial Relation Act. It found that the agreement Exh.32 dated 3-7-1972 between the respondent and Union did not exclude even the Supervisors from grant of said benefit. It therefore, found that e respondent - employer could not establish that they were doing supervisory work or the benefit was released to them inadvertently or wrongly. It therefore, answered the issue No. 1 in favour of the employee/petitioner holding that they aye proved their existing right. 7. It has thereafter proceeded to consider the question of quantification, vide issue No.2. The said consideration begins at paragraph No. 16 and it has found that there was no evidence to find out total number of holidays and public holidays from 1982 till the date of retirement of applicants before it. 7. It has thereafter proceeded to consider the question of quantification, vide issue No.2. The said consideration begins at paragraph No. 16 and it has found that there was no evidence to find out total number of holidays and public holidays from 1982 till the date of retirement of applicants before it. It also noted that at the most it can have found out those holidays, but as exact wages of applicants were not disclosed on record, it was not possible for it to undertake any calculations. In this background it noticed that prior to the amendment on 13-9-1995, the claim of the applicants was of Rs. 20,000/- and Rs. 15000/- rspectively, which was then enhanced to Rs. 22500/- and Rs. 23500/-. It could not comprehend on what basis such enhancement was made by the applicants. It also recorded inability of learned counsel representing the applicants to give necessary details and his stand that those details were in custody of the employer i.e. the present respondent. It has noted that the employer did not produce those documents. It then proceeded to observe that initially the responsibility to work out calculations was upon the applicants and contention of applicant that as employer did not bring on record necessary material, amounts given by them should be accepted, was found to be unacceptable. It further found that it was not in a position to accept the claim of the applicants as there were no calculations in support thereof. In view of this material, it has dismissed the matter. 8. The judgment of Hon'ble Apex Court in the case of D. Krishnan and another vs. Special Officer, Vellore Cooperative Sugar Mill (supra), relied upon by Shri Wachasunder, learned counsel shows that there the status of workman as such under section 2(s) of the Industrial Disputes Act was itself in dispute and representation made by them disclose that they were working in managerial capacity. Their claim was based on punch time cards which were found to be insufficient to substantiate their claim, because there were no over time slips as required under Rule 78-B of the T.N. Factories Rules, 1950. The applicants there did not offer themselves for oral examination or cross examination. Their claim was based on punch time cards which were found to be insufficient to substantiate their claim, because there were no over time slips as required under Rule 78-B of the T.N. Factories Rules, 1950. The applicants there did not offer themselves for oral examination or cross examination. The employer had disputed the claim of applicants (appellant before the Hon'ble Apex Court) from beginning and the observations made by the Hon'ble Apex Court in paragraph No. 14 clearly distinguish it for the present matter. The conclusions reached by the Hon'ble Apex Court in paragraph No. 17 are in this background. 9. Municipal Council, Latur vs. Shivaji Vaijnath Kamble (supra), is the judgment of learned Single Judge of this Court where in paragraph No. 13, the direction given by the Labour Court to petitioner - Municipal Council to compute the amount due to respondent employee has been held to constitute abdication of its responsibility by the Labour Court. It has been held that the main duty of the Labour Court is to compute the amount due to the employee under section 33-C(2) and without doing it, it could not have directed the Municipality to do it. This Court therefore directed the Labour Court to compute actual amount due to the employees after calling for relevant documents from the parties or from any other authority which the Labour Court find necessary. 10. In present facts, the perusal of written statement i.e. reply filed by the respondent before the Labour Court while denying the contents of the application under section 33-C(2) shows that the employer took a defence that benefit of extra wages at 1 ½ time of normal wage ought to have been discontinued when the applicants were promoted in supervisory capacity. It pleaded that such discontinuation in September, 1982 did not require compliance with provisions of law. It is further held that in no case the applicants were required to work for more than 48 hours as they were enjoying substitute weekly of for working on weekly off day or public holidays. It was denied that the applicants worked on 26th January, 15th August and 1st May. The stand of the applicants that they wee not in a position to give details or day wise calculations of their entitlement was also denied by the employer. The evidence of both the applicants has thereafter been recorded by the Labour Court. It was denied that the applicants worked on 26th January, 15th August and 1st May. The stand of the applicants that they wee not in a position to give details or day wise calculations of their entitlement was also denied by the employer. The evidence of both the applicants has thereafter been recorded by the Labour Court. Both the applicants/ employees claimed to have worked on weekly off day and on public holidays. However they could not give details and in cross examination only suggestion given to them was that their claim was false. They have denied this suggestion. There is no suggestion to them that they were given any substitute holiday and therefore they were not entitled to wages for working on weekly off day or public holidays. Even perusal of the evidence adduced on record by the respondent employer shows that its witness have not brought anything on record to prove that after 1978 and, in any case, after 1982 the applicants were given substitute holiday for working on public holiday or weekly off day. The defence that from 1978 till 1982 the wages at 1 ½ time rate were given for such working mistakenly is also not substantiated. 11. This evidence and defence clearly shows that there was no dispute about the fact that the applicants were required to work on public holidays or on weekly off days. The Labour Court has also recoded that finding and that finding has not been assailed by the employer. It is to be noted that the applicants could not furnish details of their work and their witness Shri Dada Lambat (General Secretary of recognized Union) stated that the Union could have furnished the details, but those details were not made available to the Labour Court. The employer also did not produce necessary records. Thus, the Labour Court has found the entitlement to such benefit is proved, but its computation could not be undertaken. It is apparent that in such circumstances, the Labour Court which is statutorily required to compute the benefit and determine the amount payable to the applicants, ought to have called upon the employer to produce necessary records and undertaken that exercise. The fact that applicants did not give any evidence, produce documents or did not take any positive steps in that direction, are not sufficient to refuse the benefit of a welfare measure to them. The fact that applicants did not give any evidence, produce documents or did not take any positive steps in that direction, are not sufficient to refuse the benefit of a welfare measure to them. Mistake if any of their representative cannot be used to defeat the claim which is otherwise found valid by the Labour Court. In present situation, Labour Court could not have refused to exercise its jurisdiction and would not have allowed employer to get away due to such technical error by employees. 12. In view of this, the impugned orders dated 16-3-2005 passed in Misc. I.D.A.No. 4/2003 as also the order dated 18-1-2001 passed in I.D.A. No. 83/1989 are quashed and set aside. The proceedings in I.D.A. No. 83/1989 are restored back to the file of the 1st Labour Court, Nagpur for computing the benefit payable to the applicants i.e. for deciding the issue No. 2 again. The Labour Court shall call upon the respondent employer to produce necessary records and thereafter undertake the exercise of computation. As the matter is old and one of the applicant had already expired, the Labour Court shall attempt to compute the said benefit as early as possible and in any case by 31-7-2010. Parties shall appear before the Labour Court on 1-2-2010 and shall abide by its further direction in the matter. 13. Writ Petition is accordingly allowed. Rule is made absolute in the aforesaid terms, with no orders as to costs. Petition allowed.